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1st Session, 42nd Legislature

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Bill 2

THE PUBLIC SERVICES SUSTAINABILITY AMENDMENT ACT


  Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

S.M. 2017, c. 24 amended

1           The Public Services Sustainability Act, as enacted by S.M. 2017, c. 24, is amended by this Act.

2           Clause 1(b) is amended by striking out "a portion" and substituting "the use of some or all".

3(1)        Section 2 is amended

(a) in the definition "health organization", by replacing clause (b) with the following:

(b) an employer that provides a health service and which is designated by a regulation under clause 29(a.1);

(b) in the definition "non-represented employee", by adding "and includes, without limitation, an employee or office holder who negotiates the terms of their employment directly with their employer" at the end; and

(c) by adding the following definitions:

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)

"prescribed" means prescribed by regulation.

"regulation" means a regulation made under this Act. (« règlement »)

(d) by repealing the definition "health services insurance fund".

3(2)        Section 2 is further amended by renumbering it as subsection 2(1) and adding the following as subsection 2(2):

"Act" includes regulations

2(2)        A reference to "this Act" includes the regulations made under this Act.

4           Clause 7(1)(h) and subsection 7(2) are amended by striking out "Children's Advocate" and substituting "Advocate for Children and Youth".

5           Subsection 9(1) is replaced with the following:

Sustainability period — represented employees

9(1)        For the purpose of sections 10 to 15, the sustainability period for employees represented by a bargaining agent is, unless otherwise prescribed under section 12.1, the four-year period that begins on the following day:

Collective agreement in force on March 20, 2017

(a) if, on March 20, 2017, the employees' rates of pay were as determined under a collective agreement or arbitral decision that was in force on that day, the day immediately following the day the collective agreement or decision expired or was terminated;

Collective agreement expired or terminated before March 20, 2017

(b) if, on March 20, 2017, the employees' rates of pay were as determined under a collective agreement or arbitral decision that was expired or was terminated before that day, the day immediately following the day the collective agreement or decision expired or was terminated;

First collective agreement

(c) if the parties bargained or were bargaining a first collective agreement — or arbitrated or were in arbitration to resolve all matters necessary to conclude a first collective agreement — on any day from March 20, 2017, to October 7, 2019, the day the first collective agreement or arbitral decision governing their rates of pay took or takes effect.

6(1)        Subsection 12(1) is amended in the part before clause (a),

(a) by striking out "Subject to subsections (2) and (3)," and substituting "Except as prescribed under section 12.2,"; and

(b) by striking out "during the" and substituting "during an".

6(2)        Subsections 12(2) and (3) are repealed.

7           The following is added after section 12:

Sustainability period may be prescribed

12.1(1)     The Lieutenant Governor in Council may prescribe the start date, and the duration, of the sustainability period for a group of employees represented by a bargaining agent.

Considerations — start date

12.1(2)     In prescribing the start date of a sustainability period, the Lieutenant Governor in Council is to have regard for the appropriateness of having the employees' sustainability period be consistent with the sustainability period for one or more groups of employees in comparable occupations.

Limit on start date

12.1(3)     A sustainability period may not be prescribed to start before the day that otherwise would have applied under subsection 9(1).

Duration

12.1(4)     The duration of a sustainability period prescribed under this section must not exceed four years, but it may be shorter.

Considerations — duration

12.1(5)     In prescribing a shorter sustainability period, the Lieutenant Governor in Council is to have regard for the increases in the rates of pay the employees received in the four-year period immediately preceding their sustainability period.

Prescribed increases in rates of pay

12.2(1)     The Lieutenant Governor in Council may prescribe the maximum increases in rates of pay that a collective agreement or arbitral decision may provide for employees whose sustainability period is prescribed under section 12.1.

General rule for prescribed increase

12.2(2)     The maximum increases prescribed

(a) must be the amounts set out in subsection 12(1), if the duration of the employees' sustainability period is four years; or

(b) must not exceed the sum of the amounts set out in subsection 12(1), if the duration of the employees' sustainability period is less than four years.

Considerations — increases for shortened periods

12.2(3)     In prescribing the maximum increase in the rates of pay under clause (2)(b), the Lieutenant Governor in Council is to have regard for the increases in the rates of pay the employees received in the four-year period immediately preceding their sustainability period.

8           Section 13 is replaced with the following:

Permitted increases in additional remuneration

13(1)       A collective agreement or arbitral decision may provide for an increase to existing additional remuneration, or for new additional remuneration, for employees during the applicable sustainability period only if

(a) the cost to the employer of the increase in additional remuneration and of any increase in the rates of pay actually negotiated or decided during the employee's sustainability period;

does not exceed

(b) what the employer's cost would be if the employees received the maximum increase in their rates of pay, as permitted under this Act.

Altering additional remuneration permitted

13(2)       For certainty, a collective agreement or arbitral decision may alter the types, forms or amounts of additional remuneration available to the employees, provided the employer's cost of providing the altered additional remuneration is not increased by an amount that exceeds the amount permitted under subsection (1).

9           The following is added after section 13:

Negotiated additional remuneration may be approved

13.1        Despite section 13, the minister may — in the minister's sole discretion — approve a collective agreement that provides for an increase to existing additional remuneration, or for new additional remuneration, that exceeds the amount permitted under section 13, if satisfied that the increased amount is

(a) relatively modest given the overall increases in the employer's cost under the collective agreement; and

(b) in keeping with the purposes of this Act.

10          Section 14 is replaced with the following:

Use of negotiated sustainability savings

14(1)       Despite sections 12 and 13, on the recommendation of the minister, Treasury Board may — in its sole discretion — approve the use of some or all of the employer's sustainability savings to fund an increase to the compensation payable to the employees under their collective agreement.

Interpretation: "sustainability savings"

14(2)       In subsection (1), "sustainability savings" means the savings respecting collaborative measures identified in the course of collective bargaining and which, during the applicable sustainability period, result in reductions in expenditures by the employer or avoidance of costs to the employer.

11          The following is added after section 14:

Exemption from application of this Act

14.1        The Lieutenant Governor in Council may, by regulation, exempt a collective agreement from the application of this Part.

12          Section 15 is replaced with the following:

Act prevails: collective agreements and arbitral decisions

15          This Act prevails over any collective agreement or arbitral decision, whether entered into or made before or after the coming into force of this Act, and a collective agreement or arbitral decision is void and deemed never to have had effect to the extent it is inconsistent with this Act.

13          Clause 20(a) is amended by striking out "and" and substituting "or".

14          The following is added after subsection 22(2):

Employer must comply

22(2.1)     An employer that receives a request under subsection (2) must provide the information or documentation required in the form and manner and within the time specified by Treasury Board.

15          The following is added after section 22 as part of Part 2:

If collective agreement inconsistent

22.1(1)     If a collective agreement is inconsistent with this Act, to the extent of the inconsistency,

(a) the terms and conditions of employment that applied to the employees immediately before the parties settled the collective agreement continue to apply, subject to any changes permitted by this Act and which may otherwise be lawfully made; and

(b) the parties must return to the same stage in bargaining as they were at immediately before they settled the collective agreement.

If arbitral decision inconsistent

22.1(2)     If an arbitral decision is inconsistent with this Act, to the extent of the inconsistency,

(a) the terms and conditions of employment that applied to the employees immediately before the date of the arbitral decision continue to apply, subject to any changes permitted by this Act and which may otherwise be lawfully made; and

(b) the arbitrator or arbitration board that issued the decision remains seized to make a decision that is consistent with this Act.

16(1)       Subsection 23(1) is amended

(a) in the definition "arbitral decision", by striking out "or the amount payable by the government in respect of a fund"; and

(b) by repealing the definition "fund".

16(2)       Subsection 23(2) is amended

(a) in the part before the table by striking out "a fund or"; and

(b) in the table,

(i) by replacing the heading for the first column with "Type of fee", and

(ii) by striking out the first row.

17          Section 25 is repealed.

18          Section 26 is replaced with the following:

Act prevails

26          If an agreement or arbitral decision, whether made before or after the coming into force of this Part, provides for an increase in a fee contrary to section 24,

(a) the provision of the agreement or arbitral decision is, to the extent of the inconsistency, of no effect and deemed never to have taken effect;

(b) the fees that applied immediately before the date of the agreement or arbitral decision continue to apply, subject to any changes permitted by this Act and which may otherwise be lawfully made; and

(c) in the case of an arbitral decision, the arbitrator or arbitration board that issued the decision remains seized to make a decision that is consistent with this Act.

19          Section 28 is replaced with the following:

Overpayments

28(1)       The following amounts are deemed to be an overpayment:

(a) any amount of a fee that is paid to a person, before or after the coming into force of this Act, that is in excess of the amount that is permitted under section 24;

(b) in the case of an amount received by an employee from their employer,

(i) any amount of pay that is paid to the employee, before or after the coming into force of this Act, that is in excess of the amount that is permitted under this Act, and

(ii) an amount equal to the cost to the employer of any additional remuneration received or accepted by the employee, before or after the coming into force of this Act, that exceeds the additional remuneration permitted under this Act.

Recovery of overpayments — fees

28(2)       In the case of an overpayment of a fee, the amount of the overpayment is a debt due to the government by the person who received it, and may be recovered by the government by any remedy or procedure available to it by law to enforce the payment of a debt, including deducting or setting off the amount from a payment to the person by the government.

Allocation of costs for additional remuneration

28(3)       For the purpose of subclause (1)(b)(ii), in the case of additional remuneration that is eligible to be received or accepted by more than one employee, each employee is considered to have received or accepted an amount that is equal to the employer's total cost of the excess additional remuneration divided by the total number of employees eligible to receive or accept it.

Recovery of overpayments — employees

28(4)       In the case of an overpayment to an employee, the overpayment is a debt due to the employer that made the overpayment from the employee who received it, and may be recovered by the employer by any remedy or procedure available to it by law to enforce the payment of a debt, including deducting that overpayment from any compensation payable to the employee.

Overpayments by employer may reduce provincial funding

28(5)       The minister may reduce the amount of any funding provided by the government to an employer by the amount of any overpayment received by an employee of the employer.

20          Section 29 is amended

(a) by adding the following after clause (a):

(a.1) prescribing an entity that provides health services to be a health organization for the purposes of the definition "health organization" in section 2;

(b) by adding the following after clause (b):

(c) prescribing anything referred to in this Act as being prescribed;

(d) respecting any transitional matters necessary for the effective implementation of this Act, including regulations to remedy any difficulty, inconsistency or impossibility resulting from the transition;

(e) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

21          The following is added after section 29 and before the centred heading that follows it:

Retroactive regulations

29.1        A regulation under this Act may be made retroactive to a date fixed in the regulation.

Coming into force

22          This Act comes into force on the day it receives royal assent or on the day that The Public Services Sustainability Act, S.M. 2017, c. 24, comes into force, whichever is later.

Explanatory Note

This Bill amends The Public Services Sustainability Act. The key changes are as follows:

  • the start date and the duration of a sustainability period for a group of unionized employees may be set by regulation;
  • the increases in pay during a sustainability period that is set by regulation cannot exceed the maximum increases currently permitted under the Act;
  • the minister may approve a collective agreement that provides for modest increases in additional remuneration;
  • compensation changes that reflect sustainability savings identified in the course of collective bargaining may be approved by Treasury Board;
  • a collective agreement may be exempted from the Act by regulation;
  • references to the Manitoba Health Services Insurance Fund and other funds are removed;
  • the recovery of overpayments is clarified.