An Act to amend the Federal Public Sector Labour Relations Act and other Acts (S.C. 2018, c. 24)

Marginal note:Application of Division

119 This Division applies to the employer and the bargaining agent for a bargaining unit when the process for the resolution of a dispute applicable to the bargaining unit is conciliation.

Marginal note:Employer determines levels of service

120 The employer has the exclusive right to determine the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided. Nothing in this Division is to be construed as limiting that right.

Marginal note:Proportion of duties may vary during strike

• 121 (1) For the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, the employer and the bargaining agent may agree that some employees in the bargaining unit will be required by the employer to perform their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

• Marginal note:Determination of number of necessary employees

  (2) For the purposes of subsection (1), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

  • (a) without regard to the availability of other persons to provide the essential service during a strike; and

  • (b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.

Marginal note:Obligation to negotiate

• 122 (1) If the employer has given to the bargaining agent a notice in writing that the employer considers that employees in the bargaining unit occupy positions that are necessary for the employer to provide essential services, the employer and the bargaining agent must make every reasonable effort to enter into an essential services agreement as soon as feasible.

• Marginal note:Timing

  (2) The notice may be given at any time but not later than 20 days after the day a notice to bargain collectively is given.

Marginal note:Application to the Board

• 123 (1) If the employer and the bargaining agent are unable to enter into an essential services agreement, either of them may apply to the Board to determine any unresolved matter that may be included in an essential services agreement. The application may be made at any time but not later than

  • (a) 15 days after the day a request for conciliation is made by either party; or

  • (b) 15 days after the day the parties are notified by the Chairperson under subsection 163(2) of his or her intention to recommend the establishment of a public interest commission.

• Marginal note:Delay

  (2) The Board may delay dealing with the application until it is satisfied that the employer and the bargaining agent have made every reasonable effort to enter into an essential services agreement.

• Marginal note:Powers of Board

  (3) After considering the application, the Board may determine any matter that the employer and the bargaining agent have not agreed on that may be included in an essential services agreement and make an order

  • (a) deeming the matter determined by it to be part of an essential services agreement between the employer and the bargaining agent; and

  • (b) deeming that the employer and the bargaining agent have entered into an essential services agreement.

• Marginal note:Restriction

  (4) The order must not require the employer to change the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided.

• Marginal note:Proportion of duties may vary during strike

  (5) The Board may, for the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, take into account that some employees in the bargaining unit may be required by the employer to perform those of their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

• Marginal note:Determination of number of necessary employees

  (6) For the purposes of subsection (5), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

  • (a) without regard to the availability of other persons to provide the essential service during a strike; and

  • (b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.

• Marginal note:Application relating to specific position

  (7) If the application relates to a specific position to be identified in the essential services agreement, the employer’s proposal in respect of the position is to prevail, unless the position is determined by the Board not to be of the type necessary for the employer to provide essential services.

Marginal note:Coming into force of agreement

124 The essential services agreement comes into force on the day it is signed by the parties or, in the case of an essential services agreement that the employer and the bargaining agent are deemed to have entered into by an order made under paragraph 123(3)(b), the day the order was made.

Marginal note:Duration

125 An essential services agreement continues in force until the parties jointly determine that there are no employees in the bargaining unit who occupy positions that are necessary for the employer to provide essential services.

Marginal note:Notice to negotiate amendment

• 126 (1) If a party to an essential services agreement gives a notice in writing to the other party that the party giving the notice seeks to amend the essential services agreement, the parties must make every reasonable effort to amend it as soon as feasible.

• Marginal note:Timing

  (2) If a collective agreement or arbitral award is in force, the notice may be given at any time except that, if a notice to bargain collectively has been given with a view to renewing or revising the collective agreement, the notice may only be given during the 60 days following the day the notice to bargain collectively was given.

Marginal note:Application to Board

• 127 (1) If the employer and the bargaining agent are unable to amend the essential services agreement, either of them may apply to the Board to amend the essential services agreement. The application may be made at any time but not later than

  • (a) 15 days after the day a request for conciliation is made by either party; or

  • (b) 15 days after the day the parties are notified by the Chairperson under subsection 163(2) of his or her intention to recommend the establishment of a public interest commission.

• Marginal note:Delay

  (2) The Board may delay dealing with the application until it is satisfied that the employer and the bargaining agent have made every reasonable effort to amend the essential services agreement.

• Marginal note:Amendment by Board

  (3) The Board may, by order, amend the essential services agreement if it considers that the amendment is necessary for the employer to provide essential services.

• Marginal note:Restriction

  (4) The order must not require the employer to change the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided.

• Marginal note:Proportion of duties may vary during strike

  (5) The Board may, for the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, take into account that some employees in the bargaining unit may be required by the employer to perform their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

• Marginal note:Determination of number of necessary employees

  (6) For the purposes of subsection (5), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

  • (a) without regard to the availability of other persons to provide the essential service during a strike; and

  • (b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.

• Marginal note:Application relating to specific position

  (7) If the application relates to a specific position to be identified in the essential services agreement, the employer’s proposal in respect of the position is to prevail, unless the position is determined by the Board not to be of the type necessary for the employer to provide essential services.

Marginal note:Coming into force of amendment

128 An amendment to an essential services agreement comes into force on the day the agreement containing the amendment is signed by the parties or, in the case of an amendment made by order of the Board under subsection 127(3), the day the order was made.

Marginal note:Replacement positions

• 129 (1) If, at any time while an essential services agreement is in force, a position identified in it becomes vacant, the employer may identify a position of the same type as a replacement position. If the employer does so, the employer must file a notice of replacement with the Board and provide a copy to the bargaining agent.

• Marginal note:Effect of notice

  (2) On the filing of the notice, the replacement position is deemed to be a position identified in the essential services agreement and the position it replaced is deemed to be no longer identified.

Marginal note:Notification of employees

• 130 (1) The employer must provide every employee who occupies a position that has been identified in an essential services agreement as being a position that is necessary for the employer to provide essential services with a notice informing the employee that the employee occupies such a position.

• Marginal note:Notification of change

  (2) A notice given under this section remains valid so long as the employee continues to occupy the position unless the employer notifies the employee that the position occupied by the employee is no longer necessary for the employer to provide essential services.

Marginal note:Emergency application

131 Despite any provision in this Division, if either the employer or the bargaining agent is of the opinion that a temporary amendment to an essential services agreement, or its suspension, is necessary because of an emergency but the parties are unable to agree to do so, either of them may, at any time, apply to the Board for an order temporarily amending, or suspending, the agreement.

Marginal note:Duty to observe terms and conditions

132 Unless the parties otherwise agree, every term and condition of employment applicable to employees in a bargaining unit in respect of which a notice to bargain collectively is given that may be included in a collective agreement and that is in force on the day the notice is given remains in force in respect of any employee who occupies a position that is identified in an essential services agreement and must be observed by the employer, the bargaining agent for the bargaining unit and the employee until a collective agreement is entered into.

Marginal note:Extension of time

133 The Board may, on the application of either party, extend any period referred to in this Division.

Marginal note:Filing of essential services agreement

134 Either party to an essential services agreement may file a copy of it with the Board. When filed, it has the same effect as an order of the Board.