Skip to main content
The Essential Services Act (Health Care)
This is an unofficial version.
If you need an official copy, use the bilingual (PDF) version.

This version is current as of October 18, 2017.
It has been in effect since December 5, 2013.

Show previous versions Hide previous versions

Previous versions:


 

C.C.S.M. c. E146

The Essential Services Act (Health Care)

(Assented to June 16, 2011)

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

INTRODUCTORY PROVISIONS

Overview

1           The purpose of this Act is to ensure that essential health services are provided in the event of a work stoppage. The Act requires the parties to a collective agreement to enter into an essential services agreement that will enable the employer to continue to provide those services during a work stoppage.

Definitions

2           The following definitions apply in this Act.

"board" means The Manitoba Labour Board established under The Labour Relations Act. (« Commission »)

"collective agreement" means a collective agreement as defined in The Labour Relations Act. (« convention collective »)

"employee" means an employee of an employer. (« employé »)

"employer" means an employer referred to in clause 3(1)(a). (« employeur »)

"essential service" means a service, duty or function that is necessary to enable an employer to prevent or limit

(a) loss of life;

(b) serious harm or damage to, or deterioration of, the mental or physical health of one or more persons; or

(c) serious harm or damage to, or deterioration of, property required in the performance of an essential service. (« service essentiel »)

"essential services agreement" means an agreement that meets the requirements of section 5. (« accord sur les services essentiels »)

"essential services employee" means an employee who is required to work during a work stoppage as a result of an essential services agreement. (« employé assurant des services essentiels »)

"work stoppage" means a strike or a lockout as those terms are defined in The Labour Relations Act. (« arrêt de travail »)

S.M. 2013, c. 54, s. 31.

Application of Act

3(1)        This Act applies to

(a) the following employers involved in the delivery of health services:

(i) a person or organization that owns or operates an institution or other facility designated as a hospital by regulation under The Health Services Insurance Act,

(ii) a person or organization that owns or operates a personal care home as defined in The Health Services Insurance Act,

(iii) a regional health authority established or continued under The Regional Health Authorities Act,

(iv) St. Amant Centre,

(v) CancerCare Manitoba,

(vi) Diagnostic Services of Manitoba Inc.,

(vii) any other employer designated in the regulations;

(b) every union that represents employees of an employer referred to in clause (a); and

(c) every employee who is covered by a collective agreement between a union and an employer referred to in clause (a).

Act binds the Crown

3(2)        This Act binds the Crown.

Act prevails

4           This Act prevails over every other Act and every regulation, collective agreement, arbitral or other award or decision and every obligation, right, claim, agreement or arrangement of any kind.

ESSENTIAL SERVICES AGREEMENTS

Purpose and content of essential services agreement

5           The purpose of an essential services agreement is to enable the employer to continue to provide essential services in the event of a work stoppage. The minimum requirements for such an essential services agreement are as follows:

1.

The agreement must identify the work functions that constitute essential services.

2.

The agreement must identify the classifications of employees, and the number of employees in each classification, who will be required at any one time to perform essential services during a work stoppage, subject to items 4 and 5.

3.

The agreement must provide for a method by which employees competent to perform essential services will be assigned to perform those services during a work stoppage.

4.

In order to allow the employer to respond to an unanticipated increase in the need for essential services during a work stoppage, the agreement must set out a procedure for

(a) identifying and assigning additional employees within the classifications referred to in item 2 who will be required to perform the work functions identified under item 1; and

(b) the immediate assignment of additional employees.

The agreement must provide that an employer who uses the procedure must immediately serve notice on the union setting out the additional number of employees in each classification who will be required to perform the work functions as a result of the unanticipated increase.

5.

In order to allow the employer to respond to an emergency during a work stoppage, the agreement must set out a procedure for

(a) identifying additional work functions as essential services;

(b) identifying additional classifications of employees and the number of employees in each classification who will be required to perform those functions in an emergency; and

(c) the immediate assignment of additional employees.

The agreement must provide that an employer who uses the procedure must immediately serve notice on the union setting out the additional work functions identified as essential services, the additional classifications of employees and the number of employees in each classification who will be required to perform those functions in an emergency.

6.

The agreement must name

(a) the person the parties have chosen as arbitrator, and at least two alternates in case the person is unavailable; or

(b) the persons the parties have chosen to form an arbitration board, and the person they have chosen as chair of the arbitration board, and at least two alternates for each board member in case any person is unavailable;

to arbitrate, in accordance with section 10 (dispute settlement), any dispute about the interpretation, application or implementation of the agreement or about anything done or attempted to be done under the agreement.

When to begin negotiations

6(1)        An employer and a union who are parties to a collective agreement and who do not have an essential services agreement must begin negotiations for an essential services agreement

(a) immediately, if the collective agreement has a term of at least 13 months and the unexpired portion of the term is less than 12 months; or

(b) if the collective agreement has a term of less than 13 months,

(i) within three months after entering into the collective agreement, or

(ii) within 30 days after this Act comes into force, if that agreement was entered into more than two months before this Act came into force.

Notice to begin negotiations

6(2)        When the parties are required to begin negotiations, either party may, by written notice to the other, require the other to begin those negotiations.

Information to assist negotiations

6(3)        Promptly after giving or receiving the notice to begin the negotiations, the employer must provide the union with its proposals regarding the matters to be included in the essential services agreement.

Conciliation or mediation

6(4)        The employer or the union may request the minister responsible for The Labour Relations Act to appoint a conciliation officer under section 67 of that Act — or a mediator under section 95 of that Act — to assist them to conclude an essential services agreement. In that case, the provisions of The Labour Relations Act respecting conciliation and mediation apply, with necessary changes.

Referral to arbitration

7(1)        If an employer and a union are unable to conclude an essential services agreement, either party to the negotiations may, by written notice to the other party, require the matters in dispute to be referred to arbitration in accordance with this section. The parties may, by agreement, appoint a single arbitrator or an arbitration board.

Appointment of arbitrator

7(2)        If the parties are unable to agree on a single arbitrator, or on the members of an arbitration board and the person to be named as its chair, either party may take steps to establish an arbitration board in accordance with The Labour Relations Act.

Parties must provide information

7(3)        After the arbitrator or arbitration board is appointed, each party must promptly give the arbitrator or arbitration board a statement setting out the matters on which the parties have agreed, if any, and the matters on which they cannot agree.

Hearing not required

7(4)        An arbitrator or arbitration board may hold a hearing before making an award under this section, but is not required to do so.

Arbitration award

7(5)        The arbitrator or arbitration board must make an award settling the terms of an essential services agreement between the parties within 30 days after being appointed, or within any longer period that the parties agree to.

Agreement binding

8           An essential services agreement between an employer and a union is binding on

(a) the employer and the union; and

(b) every employee of the employer who is represented by the union;

whether the terms of the agreement were settled by agreement or determined by arbitration.

Agreement continues until terminated

9(1)        Despite any agreement to the contrary, an essential services agreement continues in effect until it is terminated in accordance with this section.

Termination of agreement

9(2)        Recognizing that an essential services agreement might need to be updated from time to time, either party to an essential services agreement may terminate it on written notice to the other party

(a) at least 12 months before their collective agreement expires; or

(b) within 30 days after entering into a collective agreement, if that agreement has a term of less than 13 months.

Negotiations for new agreement

9(3)        When an essential services agreement is terminated, sections 6 and 7 apply to the negotiations for a new essential services agreement.

SETTLEMENT OF DISPUTES UNDER ESSENTIAL SERVICES AGREEMENT

Notice of dispute under essential services agreement

10(1)       Either party to an essential services agreement may notify the other in writing that it disputes

(a) the manner in which the other party is interpreting, applying or implementing the agreement; or

(b) any action taken by the other party under the terms of the agreement.

Referral to arbitration

10(2)       Within 24 hours after notice is given under subsection (1), either party may refer the dispute to arbitration by written notice to the other party and to the arbitrator or arbitration board named in the agreement.

Dispute settlement within 48 hours

10(3)       If the dispute is referred to arbitration under subsection (2), the arbitrator or arbitration board, as the case may be, must settle the dispute within 48 hours after the notice under subsection (1) was given.

Settlement by Manitoba Labour Board

10(4)       If

(a) the arbitrator named in the agreement, or any member of the arbitration board named in the agreement, is unable or unwilling to act as arbitrator; and

(b) the parties to the dispute cannot agree on another person to act in his or her place;

either party may apply to The Manitoba Labour Board, by written notice to the board and to the other party, for a settlement of the dispute. The board must settle the dispute within 48 hours after receiving the notice.

PROHIBITIONS, OFFENCES AND PENALTIES

No work stoppage without essential services agreement

11(1)       While there is no essential services agreement in effect between an employer and a union,

(a) the employer must not authorize, declare or cause a work stoppage of employees represented by the union;

(b) the union must not authorize, declare or cause a work stoppage against the employer; and

(c) no employee represented by the union may participate in a work stoppage against the employer.

Prohibitions when essential services agreement in effect

11(2)       While an essential services agreement is in effect,

(a) the employer must not authorize, declare or cause a work stoppage of an essential services employee under that agreement;

(b) the union must not authorize, declare or cause a work stoppage of an essential services employee under that agreement; and

(c) no essential services employee under that agreement may participate in a work stoppage against the employer.

No interference, aiding or abetting

11(3)       No person or organization shall

(a) do anything to prevent or impede an employee's compliance with subsection (1) or (2) or to aid or abet an employee not to comply with it; or

(b) fail to do anything for the purpose of preventing or impeding an employee's compliance with subsection (1) or (2) or for the purpose of aiding or abetting an employee not to comply with it.

Notice of work stoppage by employer

12(1)       An employer who authorizes, declares or causes a work stoppage must give each affected union written notice of the work stoppage at least seven days before it begins.

Notice of work stoppage by union

12(2)       A union that authorizes, declares or causes a work stoppage must give each affected employer written notice of the work stoppage at least seven days before it begins.

Offences and penalties

13(1)       Every person, union or employer who contravenes this Act is guilty of an offence and is liable on summary conviction,

(a) in the case of an offence committed by an employer or a union, or by a person acting on behalf of an employer or a union, to a fine of not more than $50,000 and, in the case of a continuing offence, to a further fine of $10,000 for each day or part of a day during which the offence continues; and

(b) in the case of an offence committed by any person other than one described in clause (a), to a fine of not more than $1,000 and, in the case of a continuing offence, to a further fine of $200 for each day or part of a day during which the offence continues.

Default

13(2)       In the case of default of payment of a fine imposed under this section, the convicting court must, on the request of the Attorney General, give the Attorney General a certified copy of the order of conviction and the fine imposed.

Filing of certificate

13(3)       The Attorney General may file the certified copy of the order of conviction mentioned in subsection (2) in the Court of Queen's Bench and, on its filing, the order is enforceable as a judgment of that court.

GENERAL PROVISIONS

Rules of Labour Board

14          The Manitoba Labour Board may make any rules of practice and procedure that the board considers necessary to carry out its responsibilities under this Act.

Labour Relations Act applies to arbitration

15(1)       The provisions of The Labour Relations Act respecting the appointment, powers, duties and decisions of arbitrators and arbitration boards apply, with necessary changes, to an arbitration authorized by this Act or an essential services agreement.

Labour Relations Act applies to determination by Labour Board

15(2)       The provisions of The Labour Relations Act respecting the composition, powers, duties and decisions of the board apply, with necessary changes, to the settlement of a dispute under subsection 10(4).

Regulations

16          The Lieutenant Governor in Council may make regulations

(a) designating any person or organization as an employer for the purpose of clause 3(1)(a);

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

17          

NOTE: This section contained amendments to The Essential Services Act that are now included in that Act.

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

C.C.S.M. reference

18          This Act may be cited as The Essential Services Act (Health Care) and referred to as chapter E146 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

19          This Act comes into force on the day it receives royal assent.