Bill 41 - Essential Services in Nursing Homes Act

BILL 41

Essential Services in Nursing Homes Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1 The following definitions apply in this Act.

“Board” means the Labour and Employment Board established under the Labour and Employment Board Act. (Commission)

“employer” means an operator as defined in the Nursing Homes Act. (employeur)

Interpretation

2 Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Industrial Relations Act.

Application

3 This Act applies to operators of nursing homes, as employers, and to the employees of nursing homes for whom bargaining agents have been certified under the Industrial Relations Act, with the exception of nurses registered under the Nurses Act.

Conflict

4 If there is a conflict between this Act and the Industrial Relations Act, this Act prevails.

Request for designation

5(1) In relation to a bargaining unit, an employer may, by notice in writing, advise the Board and the bargaining agent for the relevant bargaining unit that the employer considers in whole or in part the services provided by the bargaining unit to be essential in the interest of the health, safety or security of the residents of the nursing home.

5(2) A notice may be given

(a) in respect of a bargaining unit for which a bargaining agent is certified at the commencement of this section,

(i) if no collective agreement or arbitral award is in force, at any time until a collective agreement is concluded or arbitral award is rendered, or

(ii) if a collective agreement or arbitral award is in force, at any time during the term of the collective agreement or arbitral award except within the last 6 months before the agreement or award ceases to operate, or

(b) in respect of a bargaining unit for which a bargaining agent is certified after the commencement of this section,

(i) if no collective agreement or arbitral award is in force, within 20 days after the date of certification of the bargaining agent, or

Time limits for agreement

6 Within 7 days after the receipt by the Board of the notice referred to in section 5 the Board shall, in consultation with the employer and the bargaining agent, establish time limits within which the employer and the bargaining agent shall endeavor to reach agreement identifying

(a) the services provided by the bargaining unit that at any particular time are or will be necessary in the interest of the health, safety or security of the residents of the nursing home,

(b) the level of service to be maintained by the bargaining unit for the purpose of ensuring delivery of the services referred to in paragraph (a), and

(c) the positions in the bargaining unit to be designated positions for the purpose of ensuring the delivery of the services referred to in paragraph (a).

Agreement reached

7 If the employer and the bargaining unit are able to reach agreement in relation to the matters referred to in section 6 within the time limits established, the terms of the agreement shall be jointly communicated by the parties to the Board and the Board shall issue an order without delay to the parties in accordance with the terms of the agreement.

Agreement not reached

8(1) If the employer and the bargaining agent are unable to reach agreement in relation to the matters referred to in section 6 within the time limits established, the Board, after giving each of the parties an opportunity to present evidence and to make representations, shall determine the matters.

8(2) The Board shall communicate its determination in writing to the employer and the bargaining agent as soon as possible after making the determination.

Amendments to an order or a determination

9(1) The Board may, on the application of the employer or the bargaining agent for the relevant bargaining unit made within the time limits established in subsection (2), amend an order issued under section 7 or a determination made under section 8.

9(2) An application may be made

(a) when a collective agreement or arbitral award is in force, at any time, or

(b) when a collective agreement or arbitral award is not in force, at any time before the appointment of a conciliation officer, conciliation board, mediator or mediation officer under the Industrial Relations Act, whichever occurs first.

9(3) If the employer and the bargaining agent agree on the amendments to be made, the terms of the agreement shall be jointly communicated by the parties to the Board and the Board shall amend the order or the determination without delay, in accordance with the terms of the agreement.

9(4) If the employer and the bargaining agent are unable to reach agreement, the Board, after giving each of the parties an opportunity to present evidence and to make representations, shall determine the matters and shall communicate its determination in writing to the employer and the bargaining agent as soon as possible after making the determination.

Effect of order

10 An order issued by the Board under section 7 or a determination made by the Board under section 8 or an order or determination as amended as provided in section 9 remains in effect and binds the employer and the bargaining agent as well as the employees affected by the order or the determination.

Communication of the order or determination to employees

11 Within the time and in the manner it prescribes, the Board shall inform all employees in a bargaining unit who are employed in positions agreed by the parties or determined by the Board to be designated positions.

Illegal strike and lock-out

12(1) If a notice referred to in section 5 is given by an employer or an application referred to in section 9 is made by an employer or a bargaining agent, no employee in the bargaining unit in respect of which the notice was given or the application was made shall strike or participate in a strike until the employer and the bargaining agent have agreed upon, or the Board has determined, the positions in the bargaining unit to be designated positions and the employees in those positions have been informed by the Board.

12(2) No employee who is employed in a designated position shall participate in a strike.

12(3) No trade union or council of trade unions and no officer, director, representative, employee, agent or advisor of the trade union or council of trade unions shall declare, authorize, continue or counsel a strike of employees in contravention of subsection (1) or (2).

12(4) No employer and no officer, director, representative, employee, agent or advisor of the employer shall lock-out employees who are employed in designated positions or declare, authorize, continue or counsel a lock-out of those employees.

Extension of the collective agreement

13(1) Notwithstanding that the term of the collective agreement or arbitral award last in force between the employer and the bargaining agent for the relevant bargaining unit has expired, the terms and conditions of employment contained in the agreement or award remain in force after the expiration of the agreement or award and apply in relation to an employee in the bargaining unit employed in a designated position who is required to work during a strike or a lock-out.

13(2) An employee employed in a designated position shall not, during a strike or a lock-out, be required to work more hours, including overtime, than the employee would have been required to work had the strike or lock-out not occurred.

Offences

14(1) Every person who violates or fails to comply with subsection 12(1) or (2) of this Act commits an offence and is liable on conviction to a fine not exceeding $100 per day or part of a day during which the offence continues.

14(2) Every person who violates or fails to comply with subsection 12(3) commits an offence and is liable on conviction,

(a) in the case of an offence committed by a trade union or council of trade unions, to a fine of $10 per employee in the relevant bargaining unit for each day or part of a day for which the strike declared, authorized, continued or counselled in contravention of that subsection is or continues in effect, or to a fine of $10,000, whichever is greater, or

(b) in the case of an offence committed by an officer, director, representative, employee, agent or advisor of a trade union or council of trade unions, to a fine not exceeding $300 for each day or part of a day for which the strike declared, authorized, continued or counselled in contravention of that subsection is or continues in effect.

14(3) Every person who violates or fails to comply with subsection 12(4) commits an offence and is liable on conviction to a fine not exceeding $300 for each day or part of a day for which the lock-out is imposed, declared, authorized, continued or counselled in contravention of that subsection.

Revocation of certification

15 In addition to any other penalty provided in section 14, on the application of the employer, the Board may revoke the certification of the bargaining agent if the trade union or council of trade unions, or any officer, director, representative, employee, agent or advisor of the trade union or counsel of trade unions, as the case may be, has been found guilty of violating or failing to comply with subsection 12(3).

Application of Industrial Relations Act

16 For the purposes of this Act, sections 112, 113, 121, 124, paragraph 125(1)(h), subsections 125(2) to (5) and 126(1), paragraphs 126(2)(j) and (k), section 127, subsections 128(1) and (3), sections 130 and 131, subsections 132(2) and 134(3), section 135, subsections 136(1) to (4), 137(1) and 138(2) and sections 140 and 141 of the Industrial Relations Act apply with the necessary modifications.

Administration of Act

17 The Minister of Social Development shall administer this Act.

Regulations

18 The Board may by regulation,

(a) establish rules of procedure in respect of hearings held under sections 8 and 9, and

(b) prescribe the manner in which and the time within which the employer shall, in respect of a bargaining unit, provide to the Board the names of the employees in the bargaining unit who are employed in designated positions.

Consequential amendment to the Labour and Employment Board Act

19 Subsection 7(2) of the Labour and Employment Board Act, chapter L-0.01 of the Acts of New Brunswick, 1994, is amended by adding after paragraph (b) the following:

(b.1) Essential Services in Nursing Homes Act,