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The Health Sector Bargaining Unit Review Act

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S.M. 2017, c. 25

Bill 29, 2 nd Session, 41st Legislature

The Health Sector Bargaining Unit Review Act

Explanatory Note

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

This Act deals with bargaining units and collective bargaining in Manitoba's health sector.

The Act establishes a fixed number of bargaining units for each health region and for each province-wide health employer such as CancerCare Manitoba and Diagnostic Services of Manitoba Inc.

A commissioner will be appointed to determine the composition of the bargaining units.

If a bargaining unit consists of employees represented by more than one union, the commissioner will conduct a representation vote of employees for the purpose of selecting a single bargaining agent.

Once a bargaining agent is selected, the Act provides that the collective agreement governing the most employees in the bargaining unit to which that bargaining agent is a party will become the basis for negotiating a new collective agreement governing all employees in the unit.

The Act also establishes an employers organization for each health region, for the sole purpose of collective bargaining. It requires the minister to appoint one or more representatives to bargain on behalf of those organizations and on behalf of the province-wide health employers.

The commissioner will have authority to make the decisions necessary to implement the new bargaining framework.

(Assented to June 2, 2017)

WHEREAS the health sector in Manitoba has a large number of collective bargaining units and restructuring is required to improve patient care;

AND WHEREAS it is desirable to streamline collective bargaining processes by establishing a fixed number of bargaining units, allowing for the selection of bargaining agents for those units through representation votes, and appointing employer bargaining representatives;

AND WHEREAS it is appropriate to appoint a commissioner to guide the establishment of the new collective bargaining framework;

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

DEFINITIONS

Definitions

1(1)        The following definitions apply in this Act.

"bargaining unit" means a unit as defined in The Labour Relations Act. (« unité de négociation »)

"commissioner" means the commissioner appointed under section 5. (« commissaire »)

"employer bargaining representative" means a representative appointed under subsection 3(2) or 4(1). (« représentant patronal »)

"employers organization" means an employers organization established by subsection 3(1). (« association d'employeurs »)

"existing agreement" means a collective agreement identified in subsection 9(1) as an existing agreement. (« convention existante »)

"health region" means a health region as defined in The Regional Health Authorities Act. (« région sanitaire »)

"Labour Board" means the Manitoba Labour Board continued under The Labour Relations Act. (« Commission »)

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

"province-wide health employer" means CancerCare Manitoba, Diagnostic Services of Manitoba Inc. and any other employer prescribed by regulation as a province-wide health employer for the purpose of this definition. (« employeur provincial du secteur de la santé »)

"regional health authority" means a regional health authority as defined in The Regional Health Authorities Act. (« office régional de la santé »)

Labour Relations Act definitions

1(2)        In this Act, "bargaining agent", "collective agreement", "employee" and "union" have the same meaning as in The Labour Relations Act.

BARGAINING FRAMEWORK

Appropriate bargaining units

2(1)        The following seven bargaining units are hereby established as the appropriate bargaining units for each health region and each province-wide health employer:

(a) nurses;

(b) physicians;

(c) medical residents;

(d) physician assistants and clinical assistants;

(e) professional/technical/paramedical — consisting of employees not included in clauses (a) to (d) who hold a degree, licence or certificate and are employed in a paramedical classification;

(f) facility support — consisting of employees in the facilities sector not included in clauses (a) to (e);

(g) community support — consisting of employees in the community sector not included in clauses (a) to (e).

Single bargaining unit

2(2)        A health region and a province-wide health employer may not have more than one bargaining unit for the unionized employees of each class mentioned in clauses (1)(a) to (g).

All unionized employees to be included

2(3)        All unionized employees in the health sector must be included in a bargaining unit.

Multi-employer certification

2(4)        A bargaining unit for a health region is to be certified under a multi-employer certification when, in addition to the regional health authority, one or more other employers are specified as providing health services in the health region by a regulation under clause 31(1)(b).

Employers organization for health region

3(1)        For the sole purpose of collective bargaining, an employers organization is hereby established for each health region, consisting of

(a) the regional health authority; and

(b) any other employers that provide health services in the region and are specified by a regulation under clause 31(1)(b).

Employer bargaining representative

3(2)        The minister must appoint an employer bargaining representative to represent each employers organization established by subsection (1). An employer bargaining representative may be appointed to represent more than one employers organization.

Exclusive jurisdiction to bargain

3(3)        An employer bargaining representative has exclusive jurisdiction to bargain collectively on behalf of any employers organization that the representative has been appointed to represent.

Bargaining representative for province-wide health employer

4(1)        The minister must also appoint an employer bargaining representative to represent each province-wide health employer. An employer bargaining representative may be appointed to represent more than one such employer.

Exclusive jurisdiction to bargain

4(2)        An employer bargaining representative has exclusive jurisdiction to bargain collectively on behalf of any province-wide health employer that the representative has been appointed to represent.

COMMISSIONER

Appointment of commissioner

5(1)        The Lieutenant Governor in Council must appoint a commissioner to inquire into and make decisions in relation to bargaining unit restructuring and union representation in the Manitoba health sector in accordance with this Act.

Term

5(2)        The commissioner is to be appointed for the term specified in the order of appointment and may be re-appointed.

Responsibilities carried out as soon as practicable

5(3)        The commissioner must carry out his or her responsibilities under this Act as soon as practicable after being appointed.

BARGAINING UNITS

Commissioner to determine composition of bargaining units

6           The commissioner must, by order, determine the composition of the bargaining units established by subsection 2(1) for each health region and each province-wide health employer, having regard to the following factors:

(a) the need to enhance operational efficiency;

(b) the need to promote integration of health care delivery in the province and across the continuum of patient care;

(c) the need to facilitate the development of consistency in terms and conditions of employment;

(d) improvements in an employer's ability to restructure or reorganize its services or functions, and to integrate services or functions;

(e) community of interest among employees;

(f) that only unionized employees are to be included in a bargaining unit;

(g) any other factor that the Lieutenant Governor in Council specifies by regulation.

Commissioner to seek views of unions and employers

7           Before determining the composition of bargaining units under section 6, the commissioner must

(a) give written notice to the unions, employers organizations, province-wide health employers and employer bargaining representatives that will be directly affected by the determination; and

(b) give them an opportunity to make representations to the commissioner in the form and manner and within the time frame set out in the notice.

DETERMINING BARGAINING AGENTS

Determining bargaining agent

8(1)        In accordance with this section, the commissioner must, by order, determine the bargaining agent that is to represent the employees in each bargaining unit for each health region and each province-wide health employer.

Affiliated unions

8(2)        Unions affiliated with the same parent union are considered to be a single union for the purpose of this section.

Unions eligible for selection

8(3)        If, on the coming into force of this Act, a union is a bargaining agent for any employees included in a bargaining unit established by subsection 2(1) for a health region or a province-wide health employer, that union is eligible to be selected to represent the employees of the entire bargaining unit for that health region or province-wide health employer.

If only one eligible union

8(4)        If only one union is eligible for selection as the bargaining agent for a bargaining unit, that union must be determined to be the bargaining agent.

Representation vote if two or more eligible unions

8(5)        If two or more unions are eligible for selection as the bargaining agent for a bargaining unit, the commissioner must conduct a secret ballot vote of the employees included in that unit to determine which union will be the bargaining agent for that unit.

Voting procedures

8(6)        The commissioner may

(a) by rule or otherwise, prescribe all procedural matters respecting holding and conducting votes;

(b) make rules respecting the eligibility of employees to vote; and

(c) determine questions of voter eligibility in a vote.

INTERIM COLLECTIVE AGREEMENT

Existing agreement applies until new agreement negotiated

9(1)        For employees in a bargaining unit established by subsection 2(1) who are governed by a collective agreement in effect on the day this Act comes into force (the "existing agreement"),

(a) the employees continue to be governed by the existing agreement; and

(b) the union determined under section 8 to be the bargaining agent for that bargaining unit is bound by the existing agreement and must administer it on behalf of the employees;

until the term of the existing agreement expires or the receiving collective agreement designated under section 10 is revised, whichever occurs later.

Earlier transition at option of employees

9(2)        Despite subsection (1), if a revised collective agreement is concluded before the term of an existing agreement has expired, the bargaining agent may specify that the employees shall cease to be governed by the existing agreement and become governed by the revised collective agreement.

No certification application

9(3)        No union may apply for certification as a bargaining agent for one or more employees in a bargaining unit established by subsection 2(1) until a revised collective agreement for that unit has been concluded.

NEGOTIATING A REVISED COLLECTIVE AGREEMENT

Receiving collective agreement

10(1)       After the bargaining agent for a bargaining unit is determined under section 8, the commissioner must, by order, designate a receiving collective agreement for the bargaining unit. That agreement is to form the basis for negotiating a revised collective agreement between the parties.

Designation

10(2)       The commissioner must designate the receiving collective agreement using the following rules:

1.

Determine whether — immediately before the bargaining agent was determined under section 8 — the bargaining agent was a party to more than one collective agreement governing employees in the bargaining unit.

2.

If there was more than one such agreement, the receiving collective agreement is the one that governed the greatest number of employees at that time.

3.

If there was only one such agreement, the receiving collective agreement is that agreement.

Notice of intent to commence bargaining

10(3)       Within 180 days after a bargaining agent is determined under section 8, either the bargaining agent or the employer bargaining representative may serve notice on the other of an intent to commence collective bargaining with a view to concluding a revised collective agreement between the parties.

When agreement negotiated

10(4)       When the parties negotiate a revised collective agreement as contemplated by subsection (3), the resulting agreement is a collective agreement that is in force for the purposes of this Act and The Labour Relations Act.

Commissioner's powers re intermingling of employees

11(1)       Before a revised collective agreement is concluded, the commissioner may — on application by the bargaining agent or employer bargaining representative, or on the commissioner's own initiative — do any of the following in relation to the intermingling of employees within a bargaining unit:

(a) amend, to the extent the commissioner considers necessary, any certificate issued to a bargaining agent under The Labour Relations Act or, if there is no certificate, any provision of an existing agreement that describes the scope of the bargaining unit covered by the collective agreement;

(b) prescribe any modifications or restrictions that the commissioner considers necessary or advisable to the operation or effect of any provision of an existing agreement governing employees in a bargaining unit established by subsection 2(1);

(c) give any further direction that the commissioner considers necessary or advisable as to the interpretation or application of an existing agreement governing employees in a bargaining unit established by subsection 2(1).

Considerations

11(2)       In making a decision respecting the provisions of an existing agreement under clause (1)(b), the commissioner must take into account the extent to which, and the fairness with which, the provisions have been, or could be, applied to the employees affected in order to

(a) remove any inconsistencies or conflicts between two or more existing agreements or resulting from the intermingling; and

(b) define or redefine the employees' seniority rights under an existing agreement, having regard to section 13.

If agreement not negotiated

12(1)       If the parties do not reach agreement on a revised collective agreement as contemplated by subsection 10(3) before the receiving collective agreement expires, the bargaining agent or the employer bargaining representative may thereafter

(a) exercise any rights under the receiving collective agreement as if it had not expired; and

(b) exercise any rights under The Labour Relations Act dealing with the settlement of provisions of a collective agreement, subject to a regulation under clause 31(1)(d);

so that a revised collective agreement may be concluded.

No effect on commissioner's jurisdiction

12(2)       Nothing in subsection (1) authorizes the Labour Board to make a decision or order determining any matter in relation to which the commissioner has jurisdiction under this Act.

SENIORITY AND SERVICE RECOGNITION

Seniority and service recognition

13          Seniority rights and service recognition are portable for any employee whose bargaining unit, bargaining agent or collective agreement is changed as a result of this Act.

EFFECT OF CHANGES

No termination of employment

14(1)       A change decided on by the commissioner under this Act or as a necessary consequence of such a change — including, but not limited to, a change in bargaining unit, bargaining agent or collective agreement — does not constitute termination of an employee's employment.

No right to compensation

14(2)       Despite any other enactment or the terms of a collective agreement, no employee is entitled to any notice, wages in lieu of notice, severance pay, termination pay or other compensation if the employee's position is substantially the same after a change referred to in subsection (1) as it was beforehand.

Exception

14(3)       Nothing in this section precludes an employer from voluntarily terminating an employee's employment in accordance with applicable law or a contract or collective agreement.

COMMISSIONER'S GENERAL JURISDICTION

Jurisdiction of the commissioner

15(1)       The commissioner has exclusive jurisdiction to inquire into and make decisions and orders about all matters and questions arising under this Act.

Questions for decision of the commissioner

15(2)       Without limiting subsection (1), in any proceeding before the commissioner — or on written application by any person or organization that, in the commissioner's opinion, is affected by or has an interest in the determination of the question, or on the commissioner's own initiative — the commissioner may decide any question for the purposes of this Act, including but not limited to, whether

(a) a person is an employer, employee, professional employee or a member of a union;

(b) an association or organization is a union;

(c) an employee or group of employees is included in a bargaining unit;

(d) a collective agreement has been entered into and, if so, who the parties are, what its terms are and any related matter;

(e) a collective agreement is by its terms in effect;

(f) any person has failed to comply with a provision of this Act; or

(g) a union has become a successor by reason of a merger, amalgamation, or transfer of jurisdiction, or there has been a transfer of bargaining rights to a successor union.

Powers under Part V of Evidence Act

16          When exercising powers and performing duties under this Act, the commissioner has all the powers and protections of a commissioner under Part V of The Manitoba Evidence Act, and may receive and act on any evidence or information on oath, affidavit or otherwise that the commissioner considers appropriate, whether that evidence is admissible in evidence in a court of law or not.

Procedural rules

17          The commissioner may determine his or her own rules of practice and procedure in relation to any matter under this Act.

Power to delegate

18          The commissioner may authorize another person to act on his or her behalf in relation to any matter under this Act, other than making a decision, order or rule under this Act.

ORDERS OF THE COMMISSIONER

Commissioner may issue, amend or rescind certificates

19          For the purpose of carrying out responsibilities under this Act, the commissioner may, by order, issue, amend or rescind any bargaining certificate, including a multi-employer certificate.

Incidental orders

20          In addition to the decisions and orders the commissioner is authorized to make under this Act, the commissioner may make any order

(a) that is incidental to a power or duty of the commissioner under this Act; or

(b) that requires compliance with a decision or order made by the commissioner.

Order may amend or rescind Labour Board order

21          A decision or order of the commissioner may amend or rescind a decision or order (including a certification) of the Labour Board.

Same effect as if made by Labour Board

22          A decision or order of the commissioner has the same force and effect as a certification or other decision or order of the Labour Board, and

(a) is to be treated for all purposes as if it were made by the Labour Board; and

(b) is enforceable in the same manner as a decision or order of the Labour Board.

Retroactive decisions and orders

23          A decision or order of the commissioner may be made retroactive to a date specified in the decision or order.

Statutes and Regulations Act does not apply

24          The Statutes and Regulations Act does not apply to a decision, order or rule made by the commissioner.

Decisions and orders are final

25(1)       A decision or order made by the commissioner is final and binding and is not subject to appeal or review in any court, and no proceedings of the commissioner may be restrained by injunction, prohibition or other process or proceeding in any court.

Judicial review

25(2)       Despite subsection (1), a decision or order of the commissioner may be questioned or reviewed by way of an application for judicial review on a question of law or jurisdiction, if the application is filed with the court and served on the commissioner no later than 30 days after the date of the decision or order.

GENERAL PROVISIONS

Conflict with Labour Relations Act

26          Subject to section 27, if there is a conflict or inconsistency

(a) between this Act and The Labour Relations Act; or

(b) between an action, decision or order taken or made by the commissioner under this Act and an action, decision or order taken or made under The Labour Relations Act;

this Act or the action, decision or order taken or made under this Act prevails.

Labour Relations Act applies after revised agreement concluded

27          After a revised collective agreement has been concluded, all matters respecting that agreement are to be dealt with under The Labour Relations Act, and not by the commissioner under this Act.

Commissioner not compellable as a witness

28          Neither the commissioner, nor any person acting on the commissioner's behalf, may be required to give evidence in a court or in any other proceeding about information that comes to his or her knowledge in exercising a power or duty under this Act.

Protection from liability

29          Neither the commissioner, nor any person acting on the commissioner's behalf, is liable for any loss or damage suffered by any person by reason of anything done or omitted to be done, in good faith, in the exercise or intended exercise of a power or duty under this Act.

Certificate of commissioner admissible

30          A copy of a decision or order of the commissioner appearing to be signed by the commissioner is admissible in evidence in any proceeding as conclusive proof of the decision or order, unless the contrary is shown. Proof of the commissioner's appointment or signature is not required.

Regulations

31(1)       The Lieutenant Governor in Council may make regulations

(a) prescribing employers for the purpose of the definition "province-wide health employer";

(b) specifying employers for the purpose of subsection 3(1);

(c) specifying one or more factors for the purpose of section 6;

(d) respecting the application of The Labour Relations Act for the purpose of clause 12(1)(b);

(e) defining any word or expression used but not defined in this Act;

(f) respecting any transitional matter or difficulty that may be encountered in bringing the provisions of this Act into effect;

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

Application of regulations

31(2)       A regulation made under subsection (1) may be general or particular in its application.

Continuing effect of bargaining framework

32          Sections 1 to 4 and the regulation-making powers in section 31 continue to have effect in the health sector even after revised collective agreements are concluded.

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

C.C.S.M. reference

33          This Act may be referred to as chapter H29 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

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