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The Public Services Sustainability Act

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S.M. 2017, c. 24

Bill 28, 2 nd Session, 41st Legislature

The Public Services Sustainability Act

Explanatory Note

This note is a reader's aid and is not part of the law.

This Act establishes a four-year sustainability period during which the compensation for public sector employees, and the fee payments to physicians and other health professionals, may not be increased except by the percentages permitted by the Act.

Public sector employees

In the first two years of the sustainability period, unionized and non-unionized public sector employees receive no pay increase. In the third year, a maximum increase of 0.75% is permitted, and in the fourth year a maximum increase of 1.0% is permitted.

The sustainability period begins at different times for different employees. For unionized employees, the period begins when the term of the collective agreement that governs their wages on March 20, 2017, expires or expired. This means, for example, that for employees covered by a collective agreement that expired on March 31, 2016, the period begins retroactively on April 1, 2016. For employees covered by a collective agreement that does not expire until March 31, 2019, the period begins on April 1, 2019.

This Act does not affect an employee's entitlement to a pay increase as a result of a promotion or reclassification, or to periodic or performance-based increases within an established pay range.

The sustainability period may be shortened from four years to three for unionized employees who did not receive a pay increase in a one-year period that began in 2016.

For non-unionized employees, the four-year sustainability period begins on March 20, 2017. But if the terms of employment allow for a pay increase after that date, the period begins one year after the last increase.

Physicians and other health professionals

The four-year sustainability period, and the percentage limits on pay increases for employees during that period, also apply to physicians and other health professionals who receive payments under The Health Services Insurance Act.

(Assented to June 2, 2017)

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

PART 1

PURPOSES

Purposes

1           The purposes of this Act are

(a) to create a framework respecting future increases to compensation for public sector employees and to fees for insured medical and health services that reflects the fiscal situation of the province, is consistent with the principles of responsible fiscal management and protects the sustainability of public services;

(b) to authorize a portion of sustainability savings identified through collective bargaining to fund increases in compensation or other employee benefits; and

(c) to support meaningful collective bargaining within the context of fiscal sustainability.

PART 2

EMPLOYEES AND EMPLOYERS

DEFINITIONS

Definitions

2           The following definitions apply in this Part.

"additional remuneration" means an allowance, bonus, premium or benefit of any kind to be paid or provided to an employee. (« rémunération additionnelle »)

"arbitral decision" means a decision of an arbitrator, arbitration board or The Manitoba Labour Board that establishes or changes a rate of pay or additional remuneration. (« décision arbitrale »)

"bargaining agent" means a bargaining agent as defined in The Labour Relations Act. (« agent négociateur »)

"collective agreement" means a collective agreement, as defined in The Labour Relations Act, that governs employees and their employers. (« convention collective »)

"employee" means a person to whom this Part applies under section 7 or under a regulation under this Act. (« employé »)

"government agency" means any board, commission, association, agency, or similar body, whether incorporated or unincorporated, all the members of which, or all the members of the board of management, board of directors or governing board of which, are appointed by an Act of the Legislature or by the Lieutenant Governor in Council. (« organisme gouvernemental »)

"health organization" means

(a) a regional health authority as defined in The Regional Health Authorities Act; and

(b) any other entity that receives funding from the health services insurance fund, whether the funding is received directly from government or is received from a regional health authority in accordance with an operating agreement or service purchase agreement. (« organisme de santé »)

"health services insurance fund" means the Manitoba Health Services Insurance Fund continued under The Health Services Insurance Act. (« Fonds d'assurance-maladie »)

"non-represented employee" means an employee who is not represented by a bargaining agent or who is excluded from a bargaining unit. (« employé non représenté »)

"pay", in relation to an employee, includes salary, wages, commission or compensation payable in any other form for work performed by the employee, but does not include any additional remuneration. (« salaire »)

"rate of pay" means a base rate of pay applicable to one or more employees, whether expressed as a single rate of pay or a range of rates of pay or, if no such rate or range exists, any fixed or ascertainable amount of base pay. (« taux de rémunération »)

"terms of employment" means the terms of employment that apply to non-represented employees and includes any arrangement that establishes a non-represented employee's rate of pay. (« conditions d'emploi »)

Right to bargain collectively

3           Subject to the other provisions of this Act, the right to bargain collectively under The Labour Relations Act and The Civil Service Act is continued.

Right to strike

4           Nothing in this Act affects the right to strike under The Labour Relations Act.

Amendments permitted

5           Nothing in this Act precludes the bargaining agent for employees governed by a collective agreement or arbitral decision and the employer of those employees from amending, by agreement in writing, any provision of the collective agreement or arbitral decision, other than a provision relating to its term, so long as the amendment is not contrary to any provision of this Act.

Incremental increases

6           Nothing in this Act affects an employee's entitlement to increases as a result of promotion or reclassification or to periodic or performance-based increases within an established pay range in accordance with a collective agreement or terms of employment.

APPLICATION OF THIS PART

Application to employees

7(1)        This Part applies to persons who are employed in or by

(a) the government;

(b) a government agency;

(c) a health organization;

(d) an organization prescribed as a reporting organization under The Financial Administration Act;

(e) an authority as defined in The Child and Family Services Authorities Act;

(f) an agency as defined in The Child and Family Services Act;

(g) The University of Manitoba, The University of Winnipeg, Brandon University, Université de Saint-Boniface, University College of the North, or Manitoba Institute of Trades and Technology;

(h) the office of the Auditor General, the office of the Chief Electoral Officer, the office of the Ombudsman, the office of the Children's Advocate, the office of the Conflict of Interest Commissioner or the office of the registrar appointed under The Lobbyists Registration Act;

(i) the Legislative Assembly;

(j) a school district or school division, as defined in The Public Schools Act;

(k) any other employer that is designated by regulation, or that belongs to a class of employers designated by regulation.

Independent officers

7(2)        This Part applies to the Ombudsman, the Auditor General, the Chief Electoral Officer, the Children's Advocate and the Conflict of Interest Commissioner.

Persons designated by regulation

7(3)        The Lieutenant Governor in Council may, by regulation, designate any person or class of persons as employees to whom this Part applies.

Persons excluded by regulation

7(4)        Despite this section, on the recommendation of the Treasury Board, the Lieutenant Governor in Council may, by regulation, designate any person or class of persons as persons to whom this Part does not apply.

Part does not apply to judicial officers

7(5)        Despite this section, this Part does not apply to a judge of the Provincial Court of Manitoba, a judicial justice of the peace appointed under The Provincial Court Act or a master of the court appointed under The Court of Queen's Bench Act.

Application to employers

8           This Part applies to every employer of an employee to whom this Part applies.

EMPLOYEES REPRESENTED BY A BARGAINING AGENT

Sustainability period — represented employees

9(1)        For the purposes of sections 10 to 15, "sustainability period", in relation to employees represented by a bargaining agent, means the four-year period that begins or began, as the case may be,

(a) on the expiry of the term of the collective agreement or arbitral decision that governed their rate or rates of pay on March 20, 2017; or

(b) if there was no collective agreement that governed their rates of pay on March 20, 2017, on the day the first collective agreement governing their rates of pay takes effect.

Term of collective agreement

9(2)        For the purpose of subsection (1), the term of a collective agreement is the term specified in the collective agreement without regard to any extension under a provision of the kind described in clause 63(2)(a) of The Labour Relations Act or by operation of that Act.

Twelve-month periods

10          In every collective agreement entered into or arbitral decision made before the end of the sustainability period, the rates of pay and additional remuneration must be based on 12-month periods.

No restructuring of rates of pay

11          No collective agreement or arbitral decision may provide for the restructuring of rates of pay during the sustainability period.

Maximum increases in rates of pay

12(1)       Subject to subsections (2) and (3), no collective agreement or arbitral decision may provide for an increase in a rate of pay during the applicable sustainability period that is greater than

(a) 0% for the first 12-month period of the sustainability period;

(b) 0% for the 12-month period immediately following the first 12-month period;

(c) 0.75% for the 12-month period immediately following the second 12-month period;

(d) 1.0% for the last 12-month period of the sustainability period.

Shortened sustainability period

12(2)       If employees governed by a collective agreement or arbitral decision received no pay increase for a 12-month period that began in 2016, on the recommendation of the Treasury Board, the Lieutenant Governor in Council may by regulation shorten the sustainability period for those employees to three years.

Maximum increases — shortened sustainability period

12(3)       The maximum increase in a rate of pay for employees to whom a three-year sustainability period applies under subsection (2) is

(a) 0% for the first 12-month period of the sustainability period;

(b) 0.75% for the 12-month period immediately following the first 12-month period;

(c) 1.0% for the last 12-month period of the sustainability period.

Restrictions on additional remuneration

13          No collective agreement or arbitral decision may provide for an increase to existing additional remuneration — or for any new additional remuneration — for any employees during the applicable sustainability period unless

(a) the resulting increase in the cost of additional remuneration is not greater than the savings achieved by rates of pay less than those permitted by section 12; and

(b) the increase or new additional remuneration is approved by the Treasury Board.

Use of negotiated sustainability savings

14(1)       Despite sections 12 and 13, if a collective agreement provides for negotiated sustainability savings during the sustainability period, the Treasury Board may — in its sole discretion — approve the use of a portion of the savings to fund an increase to the compensation payable to employees during the last 24 months of the sustainability period under the collective agreement.

"Negotiated sustainability savings" defined

14(2)       For the purpose of subsection (1), "negotiated sustainability savings" means an ongoing reduction of expenditures as a result of measures agreed to in a collective agreement that reduce or avoid costs.

Act prevails

15          If a collective agreement or arbitral decision, whether entered into or made before or after the coming into force of this Part, provides for

(a) a restructuring of rates of pay contrary to section 11;

(b) an increase in a rate of pay contrary to section 12; or

(c) an increase in additional remuneration or new additional remuneration contrary to section 13;

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, and the parties are deemed to have agreed to the maximum increases in compensation permitted by this Part for employees represented by a bargaining agent.

NON-REPRESENTED EMPLOYEES

Sustainability period — non-represented employees

16          For the purpose of sections 17 to 21, "sustainability period" in relation to a non-represented employee means the four-year period that begins or began, as the case may be,

(a) if, on March 20, 2017, the employee's terms of employment provide for one or more increases in the employee's rate of pay to take effect after that date, one year after the last of those increases takes effect; or

(b) on March 20, 2017, in any other case.

Twelve-month periods

17          Rates of pay for non-represented employees during the sustainability period must be based on 12-month periods.

No restructuring of rates of pay

18          Rates of pay for non-represented employees during the sustainability period may not be restructured during that period.

Maximum increases in rates of pay

19          No rate of pay for a non-represented employee may be increased

(a) in the first 24 months of the sustainability period;

(b) by more than 0.75% in the next 12-month period;

(c) by more than 1.0% in the last 12-month period in the sustainability period.

Restrictions on additional remuneration

20          During the sustainability period, there shall be no increase to a non-represented employee's existing additional remuneration — and no new additional remuneration — unless

(a) the resulting increase in the cost of additional remuneration is not greater than the savings achieved by rates of pay less than those permitted by section 19; and

(b) the increase or new additional remuneration is approved by the Treasury Board.

Act prevails

21          If the terms of employment of one or more non-represented employees, whether established before or after the coming into force of this Part, provide for

(a) a restructuring of rates of pay contrary to section 18;

(b) an increase in a rate of pay contrary to section 19; or

(c) an increase in additional remuneration or new additional remuneration contrary to section 20;

the terms are, to the extent of the inconsistency, of no effect and deemed never to have taken effect, and the terms are deemed to provide for the maximum increases in compensation permitted by this Part for non-represented employees.

ADMINISTRATION

Powers and duties of Treasury Board

22(1)       The Treasury Board may exercise the powers and shall perform the duties in relation to this Act that are necessary to enable it to determine whether an employer of employees is complying with this Act.

Information and documentation

22(2)       The Treasury Board may require an employer to provide any information and documentation that the Treasury Board considers necessary to enable it to determine whether the employer is complying with this Act.

Treasury Board directive

22(3)       If the Treasury Board determines that an employer is not complying with this Act, it may issue any directive that it considers appropriate to ensure compliance.

PART 3

MEDICAL FEES AND OTHER PAYMENTS

Definitions

23(1)       The following definitions apply in this Part.

"administrative services" means services of an administrative or managerial nature provided by a medical practitioner for a health organization. (« fonctions administratives »)

"arbitral decision" means a decision of an arbitrator or arbitration board that establishes or changes the amount of any fee or the amount payable by the government in respect of a fund. (« décision arbitrale »)

"employee" means an employee as defined in Part 2. (« employé »)

"fees" means

(a) fees, rates or other amounts payable under The Health Services Insurance Act to medical practitioners or medical corporations for insured medical services, including the rates set out in arrangements referred to in a master agreement as "alternate funded agreements / payment arrangements";

(b) fees, rates or other amounts payable to medical practitioners or medical corporations for insured medical services or administrative services under an agreement with a health organization; and

(c) fees, rates or other amounts payable under The Health Services Insurance Act for other health services;

but does not include any amount payable to an employee as pay or additional remuneration, as defined in Part 2. (« honoraires »)

"fund" means a fund that is established or continued under a master agreement and funded by the government, including the Professional Liability Insurance Fund, the Continuing Medical Education Fund, the Maternity/Parental Benefits Fund and the Physician Retention Fund. (« fonds »)

"health organization" means a health organization as defined in Part 2. (« organisme de santé »)

"insured medical services" means medical services as defined in The Health Services Insurance Act. (« soins médicaux assurés »)

"master agreement" means an agreement entered into by the government and Doctors Manitoba under section 74 or 75 of The Health Services Insurance Act. (« entente-cadre »)

"medical corporation" means a medical corporation as defined in The Medical Act. (« cabinet de médecins »)

"medical practitioner" means a medical practitioner as defined in The Health Services Insurance Act. (« médecin »)

"other health services" means other health services as defined in The Health Services Insurance Act. (« autres services de santé »)

"Sustainability period" defined

23(2)       In this Part, "sustainability period" in relation to a fund or a type of fee means the four-year period that begins on the start date specified for it in the following table:

Fund or type of fee Start date
fund April 1, 2019
fees for insured medical services covered by a master agreement
April 1, 2019
fees for chiropractic services April 1, 2020
fees for optometric services April 1, 2015
fees for services provided in hospitals by certified oral or maxillofacial surgeons or licensed dentists
April 1, 2020
fees for insured prosthetic and orthotic services
April 1, 2013
any other fee payable under an agreement other than a master agreement
April 1, 2019

Maximum fee increases

24(1)       No fee may be increased

(a) in the first 24 months of the applicable sustainability period;

(b) by more than 0.75% in the next 12-month period;

(c) by more than 1.0% in the last 12-month period in the applicable sustainability period.

New insured services

24(2)       Subsection (1) does not prevent the government from establishing a fee payable for an insured medical service, or other health service, for which a fee was not previously established.

Restrictions on funds

25          In relation to funds, during the sustainability period

(a) no new fund may be established; and

(b) the annual amount payable to Doctors Manitoba by the government in respect of any fund may not be increased.

Act prevails

26          If an agreement or arbitral decision, whether entered into or made before or after the coming into force of this Part, provides for

(a) an increase in a fee contrary to section 24; or

(b) a new fund or an increase in the amount payable in respect of a fund contrary to section 25;

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, and the parties are deemed to have agreed to the maximum increases permitted by this Part.

PART 4

GENERAL PROVISIONS

Conflict

27          If there is a conflict between a provision of this Act and a provision of any other Act or regulation, this Act prevails to the extent of the conflict unless the other Act or regulation expressly provides that it or any of its provisions apply despite this Act.

Debt due

28          Every amount paid — including amounts paid before the coming into force of this Act — to any person in excess of the amount that should have been paid as a result of this Act is a debt due to the employer, in the case of an excess rate of pay, or to the government, in any other case.

Regulations

29          The Lieutenant Governor in Council may make regulations

(a) designating employers or classes of employers for the purpose of clause 7(1)(k);

(b) defining any word or expression used but not defined in this Act.

C.C.S.M. REFERENCE AND COMING INTO FORCE

C.C.S.M. reference

30           This Act may be referred to as chapter P272 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

31          This Act comes into force on a day to be fixed by proclamation.