Bill 35 - An Act to Amend the Public Service Labour Relations Act

BILL 35

An Act to Amend the Public Service Labour Relations Act

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

1 Section 1 of the Public Service Labour Relations Act, chapter P-25 of the Revised Statutes, 1973, is amended in the definition “employee”

(a) by adding after paragraph (c.1) the following:

(c.2) a person employed during all or part of the period from May to September who was enrolled in full-time studies at a secondary or post-secondary educational institution before he or she became employed and who declared at the time he or she became employed his or her intention to return to full-time studies at a secondary or post-secondary educational institution in the same year,

(c.3) a person employed under a co-op program for university or community college students, except for an apprentice as defined in the Apprenticeship and Occupational Certification Act,

(c.4) a person employed under an employment development program under the Employment Development Act or a similar program subsidized by Her Majesty in right of the Province or Her Majesty in right of Canada,

(b) by repealing paragraph (e).

2 The Act is amended by adding after section 63 the following:

63.1(1) In this section, “casual employee” means (employé occasionnel)

(a) a person employed on a temporary basis for the following purposes:

(i) to respond to a temporary increase in workload; or

(ii) to replace an absent employee, or

(b) a person employed on a recurring seasonal basis who has not been so employed for a continuous period of 6 months.

63.1(2) A collective agreement shall not provide, directly or indirectly, for the alteration or elimination of an existing term or condition of employment or the establishment of a new term or condition of employment if the alteration, elimination or establishment, as the case may be, has the effect of giving a casual employee permanent employee status.

TRANSITIONAL PROVISIONS AND COMMENCEMENT

Definition of “previously excluded person”

3 In sections 4 and 5, “previously excluded person” means a person who, (personne anciennement exclue)

(a) immediately before the commencement of this section, was excluded from the definition “employee” under section 1 of the Public Service Labour Relations Act because he or she was employed on a casual or temporary basis and had not been so employed for a continuous period of 6 months, and

(b) is included in an occupational group that is specified and defined within one of the categories of employees listed in paragraphs (a) to (e) of the definition “occupational category” in section 1 of the Public Service Labour Relations Act.

Part IV employees

Terms and conditions of employment continued

4(1) The terms and conditions of employment that applied to a previously excluded person employed in a portion of the public service of the Province specified in Part IV of the First Schedule of the Public Service Labour Relations Act immediately before the commencement of this section are continued until June 17, 2013, or until the date an agreement entered into under section 10 comes into effect, whichever date is earlier.

4(2) Until June 17, 2013, or until the date an agreement entered into under section 10 comes into effect, whichever date is earlier, the terms and conditions of employment that applied to a person referred to in subsection (1) immediately before the commencement of this section apply to a person hired after the commencement of this section who performs the same work as a person referred to in subsection (1) and

(a) is employed on a casual or temporary basis, and

4(3) Subsections (1) and (2) do not affect the terms and conditions of employment to which a person would otherwise be entitled under a collective agreement after having been employed for a continuous period of 6 months.

Parts I, II and III employees

Terms and conditions of employment continued

5(1) Subject to sections 6 to 9, the terms and conditions of employment that applied to a previously excluded person employed in a portion of the public service of the Province specified in Part I, II or III of the First Schedule of the Public Service Labour Relations Act immediately before the commencement of this section are continued until June 17, 2013, or until the date an agreement entered into under section 10 comes into effect, whichever date is earlier.

5(2) Until June 17, 2013, or until the date an agreement entered into under section 10 comes into effect, whichever date is earlier, the terms and conditions of employment that applied to a person referred to in subsection (1) immediately before the commencement of this section apply, subject to sections 6 to 9, to a person hired after the commencement of this section who performs the same work as a person referred to in subsection (1) and

(a) is employed on a casual or temporary basis, and

5(3) Subsections (1) and (2) do not affect the terms and conditions of employment under a collective agreement to which a person would otherwise be entitled after having been employed for a continuous period of 6 months.

Interim rights - seasonal recall

6(1) From the commencement of this section until June 17, 2013, or until the date an agreement entered into under section 10 comes into effect, whichever date is earlier, a person referred to in subsection 5(1) or (2) is eligible for seasonal recall rights based on his or her accumulated seniority.

6(2) Eligibility for seasonal recall rights is conditional on an employee’s satisfactory work performance.

Interim rights - rates of pay

7(1) From the commencement of this section until June 17, 2013, or until the date an agreement entered into under section 10 comes into effect, whichever date is earlier, a person referred to in subsection 5(1) shall be paid at one of the following rates:

(a) if the work performed by the person falls within an existing classification under a collective agreement, at the highest of the following rates:

(i) the rate paid to the person immediately prior to the commencement of this section, and

(ii) 80% of the minimum rate payable for that classification under the collective agreement; or

(b) if the work performed by the person does not fall within an existing classification under a collective agreement, at the rate of pay fixed by the employer under a new classification established by the employer for the relevant occupational group.

7(2) From the commencement of this section until June 17, 2013, or until the date an agreement entered into under section 10 comes into effect, whichever date is earlier, a person referred to in subsection 5(2) shall be paid at one of the following rates:

(a) if the work performed by the person falls within an existing classification under a collective agreement, not less than 80% of the minimum rate payable for that classification under the collective agreement; or

Interim rights - substitute teachers’ rates of pay

8(1) In this section, “substitute teacher” means a person referred to in subsection 5(1) or (2) who is hired to replace a teacher employed in a portion of the public service of the Province specified in Part II of the First Schedule of the Public Service Labour Relations Act, and who the employer determines is not eligible to be hired under a Schedule C, D, E or L contract annexed to and forming part of the collective agreement concluded between the Board of Management and the New Brunswick Teachers’ Federation on December 17, 2008, and in force from March 1, 2008, to February 29, 2012. (enseignant suppléant)

8(2) Despite section 7, from the commencement of this section until June 17, 2013, or until the date an agreement entered into under section 10 comes into effect, whichever date is earlier, a substitute teacher shall be paid at the rate of pay fixed by the employer.

8(3) On and after September 1, 2011, the rate of pay fixed under subsection (2) shall not exceed 80% of the minimum rate payable to a person holding a teacher’s licence or a teacher’s certificate of the same level, under the collective agreement concluded between the Board of Management and the New Brunswick Teachers’ Federation in force at the time the substitute teacher is employed.

Interim rights - grievances

9(1) From the commencement of this section until June 17, 2013, or until the date an agreement entered into under section 10 comes into effect, whichever date is earlier, a person referred to in subsection 5(1) or (2) has the right to present a grievance with respect the interpretation, application or administration of any right accorded him or her under section 6, 7 or 8.

9(2) A grievance under subsection (1) shall be presented and processed in accordance with grievance procedures established in the collective agreement that applies to the occupational group of the person.

General Provisions

Negotiating and entering into an agreement

10(1) Until June 16, 2013, inclusive, the employer and the relevant bargaining agent may enter into an agreement with respect to the terms and conditions of employment of a person referred to in subsection 4(1) or (2) or 5(1) or (2).

10(2) The negotiation of an agreement, if commenced, shall be commenced without giving the notice to bargain collectively referred to in section 44 of the Public Service Labour Relations Act.

10(3) A breakdown in negotiations shall not be considered a deadlock in collective bargaining for the purposes section 70 of the Public Service Labour Relations Act, and does not give rise to a right to strike action or to a right to lock-out.

10(4) An agreement entered into under subsection (1) before or after the commencement of this section is deemed to be valid and is binding on the employer, on the bargaining agent that is a party to the agreement, on the constituent elements of the bargaining agent and on an employee in the bargaining unit for which the bargaining agent has been certified.

10(5) An agreement supersedes any employment contract between the employer and an employee covered by the agreement.

10(6) An agreement shall form part of the collective agreement entered into between the employer and the bargaining agent, if in force at the time or, if no agreement is in force, in the next collective agreement between the employer and the bargaining agent.

Application of collective agreements

11(1) The employer shall comply, to the extent possible, with the provisions in a collective agreement dealing with the establishment of rates of pay for new classifications, but this subsection does not affect interim rates of pay fixed under sections 7 and 8.

11(2) An amendment purported to be made to a collective agreement by this Act does not give rise to a right to negotiate a replacement provision or a right to conciliation or to arbitration under any provision in that collective agreement respecting a law passed by the Legislative Assembly of the Province that renders null or void or materially alters a provision of the collective agreement.

12 This Act comes into force on June 17, 2010.