This enactment amends the Federal Public Sector Labour Relations Act to restore the procedures for the choice of process of dispute resolution including those involving essential services, arbitration, conciliation and alternative dispute resolution that existed before December 13, 2013.

It also amends the Public Sector Equitable Compensation Act to restore the procedures applicable to arbitration and conciliation that existed before December 13, 2013.

It repeals provisions of the Economic Action Plan 2013 Act, No. 2 that are not in force that amend the Federal Public Sector Labour Relations Act, the Canadian Human Rights Act, and the Public Service Employment Act and it repeals not in force provisions of the Economic Action Plan 2014 Act, No. 1 that amend those provisions.

It repeals Division 20 of Part 3 of the Economic Action Plan 2015 Act, No. 1, which authorizes the Treasury Board to establish and modify, despite the Federal Public Sector Labour Relations Act, terms and conditions of employment related to the sick leave of employees who are employed in the core public administration.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

essential service means a service, facility or activity of the Government of Canada that is or will be, at any time, necessary for the safety or security of the public or a segment of the public. (services essentiels)

essential services agreement means an agreement between the employer and the bargaining agent for a bargaining unit that identifies 

• (a) the types of positions in the bargaining unit that are necessary for the employer to provide essential services;

• (b) the number of those positions that are necessary for that purpose; and

• (c) the specific positions that are necessary for that purpose. (entente sur les services essentiels)

When position is necessary

(2) A position that is necessary for the employer to provide essential services for the purposes of paragraph (a) of the definition essential services agreement in subsection (1) includes a position the occupant of which is required, at any time,

• (a) to perform the duties of the position that relate to the provision of essential services; or

• (b) to be available during his or her off-duty hours to report to work without delay to perform those duties if required to do so by the employer.

• (h) the manner of giving notices referred to in subsection 103(1), and the form of those notices, and the manner of making applications referred to in subsection 104(1), and the form of those applications;

• (e) the employee organization is substituted as a party to any essential services agreement that is in force, in the place of the bargaining agent named in the agreement or its successor.

Mergers, amalgamations and transfers of jurisdiction

79 (1) If, by reason of a merger or an amalgamation of employee organizations or a transfer of jurisdiction among employee organizations, other than as a result of a revocation of certification, an employee organization succeeds another one that, at the time of the merger, amalgamation or transfer of jurisdiction, is a bargaining agent, the successor is deemed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement, an arbitral award, an essential services agreement or otherwise.

Board to determine questions

(2) If any question arises in respect of a merger, amalgamation or transfer of jurisdiction referred to in subsection (1) concerning the rights, privileges and duties of an employee organization under this Part or Division 1 of Part 2.‍1 or under a collective agreement, an arbitral award or an essential services agreement in respect of a bargaining unit or an employee in a bargaining unit, the Board, on application by the employer or any person or employee organization concerned, must determine what rights, privileges and duties have been acquired or are retained.

• (c) subject to paragraph 67(e), any essential services agreement that is in force in respect of positions in the bargaining unit ceases to be in force.

DIVISION 6 

Choice of Process for Dispute Resolution

Choice of process

103 (1) A bargaining agent for a bargaining unit must notify the Board, in accordance with the regulations, of the process it has chosen — either arbitration or conciliation — to be the process for the resolution of disputes to which it may be a party.

Recording of process

(2) The Board must record the process chosen by the bargaining agent for the resolution of disputes.

Period during which process to apply

(3) The process recorded by the Board applies to the bargaining unit for the resolution of all disputes from the day on which a notice to bargain collectively in respect of the bargaining unit is given after the process is chosen, and it applies until the process is changed in accordance with section 104.

Change of process

104 (1) A bargaining agent for a bargaining unit that wishes to change the process for the resolution of a dispute that is applicable to the bargaining unit may apply to the Board, in accordance with the regulations, to record the change.

Recording of change

(2) On receiving the application, the Board must record the change of process.

Effective date and duration

(3) A change in the process for the resolution of a dispute becomes effective on the day that a notice to bargain collectively is given after the change is recorded and remains in force until the process is changed in accordance with this section.

Notice to bargain collectively

105 (1) After the Board has certified an employee organization as the bargaining agent for a bargaining unit and the process for the resolution of a dispute applicable to that bargaining unit has been recorded by the Board, the bargaining agent or the employer may, by notice in writing, require the other to commence bargaining collectively with a view to entering into, renewing or revising a collective agreement.

When notice may be given

(2) The notice to bargain collectively may be given

• (b) if a collective agreement or arbitral award is in force, within the four months before it ceases to be in force.

Duty to observe terms and conditions

107 Unless the parties otherwise agree, and subject to section 132, after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Extension of time

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

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.

Factors to be considered

148 In the conduct of its proceedings and in making an arbitral award, the arbitration board must take into account the following factors, in addition to any other factors that it considers relevant:

• (a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians;

• (b) the necessity of offering compensation and other terms and conditions of employment in the public service that are comparable to those of employees in similar occupations in the private and public sectors, including any geographic, industrial or other variations that the arbitration board considers relevant;

• (c) the need to maintain appropriate relationships with respect to compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;

• (d) the need to establish compensation and other terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

• (e) the state of the Canadian economy and the Government of Canada’s fiscal circumstances.

Making of arbitral award

149 (1) The arbitration board must make an arbitral award as soon as feasible in respect of all the matters in dispute that are referred to it.

Constitution

164 (1) The public interest commission consists of either a single member appointed in accordance with section 166 or, subject to subsection (2), three members, appointed in accordance with section 167.

List

165 (1) For the purposes of sections 166 and 167, the Chairperson must, after consultation with the parties, prepare a list of names of persons who could be selected to act as a public interest commission that consists of a single member, or as the chairperson of a public interest commission that consists of three members.

Contents

(2) The list must set out

• (a) the names of all eligible persons jointly recommended by the parties; and

• (b) if the Chairperson is of the opinion that the parties have not jointly recommended a sufficient number of persons, the names of any other eligible persons whom the Chairperson considers suitable.

Commission with single member

166 (1) If the public interest commission is to consist of a single member, the Chairperson must submit to the Minister the list prepared under subsection 165(1). The Chairperson may, at his or her discretion, also recommend the appointment of a particular person named in the list.

Appointment

(2) After receiving the list, the Minister must, without delay, appoint a person named in the list.

Appointment of chairperson nominated by parties

(3) Within five days after the day on which the second member is appointed, the two members must nominate to be chairperson and third member of the public interest commission a person from the list prepared under subsection 165(1), and the Chairperson must recommend to the Minister the appointment of that person. The Minister must appoint the person without delay as chairperson and third member of the commission.

Failure to nominate

(4) If the two members fail to make a nomination under subsection (3), the Chairperson must, without delay, submit to the Minister the list prepared under subsection 165(1). The Chairperson may, at his or her discretion, also recommend to the Minister the appointment of a particular person named in the list as the chairperson and third member of the public interest commission.

Appointment

(5) After receiving the list, the Minister must, without delay, appoint a person named in the list as the chairperson and third member of the public interest commission.

Death, incapacity or resignation of single member

170 (1) In the event of the death, incapacity or resignation of the member of a public interest commission that consists of a single member before the commission makes a report to the Chairperson, the Chairperson must recommend to the Minister the appointment of another person from the list submitted under section 166 and the Minister must, without delay, appoint that person or another person on the list. That person must recommence the conciliation proceedings from the beginning.

Factors to be considered

175 In the conduct of its proceedings and in making a report to the Chairperson, the public interest commission must take into account the following factors, in addition to any other factors that it considers relevant:

• (a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians;

• (b) the necessity of offering compensation and other terms and conditions of employment in the public service that are comparable to those of employees in similar occupations in the private and public sectors, including any geographic, industrial or other variations that the public interest commission considers relevant;

• (c) the need to maintain appropriate relationships with respect to compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;

• (d) the need to establish compensation and other terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

• (e) the state of the Canadian economy and the Government of Canada’s fiscal circumstances.

Reconsideration of matters contained in report

179 The Chairperson may direct the public interest commission to reconsider and clarify or amplify its report or any part of the report.

Alternate dispute resolution process

182 (1) Despite any other provision of this Part, the employer and the bargaining agent for a bargaining unit may, at any time in the negotiation of a collective agreement, agree to refer any term or condition of employment of employees in the bargaining unit that may be included in a collective agreement to any eligible person for final and binding determination by whatever process the employer and the bargaining agent agree to.

• (f) the employer, a bargaining agent or an employee has failed to comply with section 132 (duty to observe terms and conditions); or

• (a) if the employer has failed to comply with section 107 or 132, an order requiring the employer to pay to any employee compensation that is not more than the amount that, in the Board’s opinion, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to the employee;

• (f) the process for resolution of a dispute applicable to the bargaining unit is conciliation and a notice to enter into an essential services agreement has been given under section 122 by the employer or the employee organization, as bargaining agent for the bargaining unit, and no essential services agreement is in force in respect of the bargaining unit;

• (g) the process for resolution of a dispute in respect of the bargaining unit is conciliation and a notice to amend an essential services agreement has been given under section 126 by the employer or the employee organization, as bargaining agent for the bargaining unit, and

  • (i) the essential services agreement has not been amended as a result of that notice, or

  • (ii) if an application referred to in subsection 127(1) was made by the employer or the employee organization, the application has not been finally disposed of by the Board;

• (h) the process for resolution of a dispute in respect of the bargaining unit is conciliation and less than 30 clear days have elapsed since

  • (i) the date an essential services agreement came into force in respect of the bargaining unit, or

  • (ii) the date an application referred to in subsection 123(1) made by the employer or the employee organization as bargaining agent for the bargaining unit was finally disposed of by the Board, if such an application was made;

• (i) the process for resolution of a dispute in respect of the bargaining unit is conciliation and the employer or the employee organization, as bargaining agent for the bargaining unit, has given a notice to amend an essential services agreement and less than 30 clear days have elapsed since

  • (i) the date of the coming into force of the amendment to the essential services agreement as a result of that notice, or

  • (ii) the date the application referred to in subsection 127(1) made by the employer or the employee organization was finally disposed of by the Board, if such an application was made;

• (j) an essential services agreement binding on the employee organization and the employer has been suspended by order under section 131;

Essential services

(2) No employee organization shall declare or authorize a strike the effect of which is or would be to involve the participation of any employee who occupies a position that is necessary under an essential services agreement for the employer to provide essential services, and no officer or representative of an employee organization shall counsel or procure the participation of those employees in a strike.

• (f) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and in respect of which a notice to enter into an essential services agreement has been given under section 122 by the employer or the bargaining agent for the bargaining unit, and no essential services agreement is in force in respect of the bargaining unit;

• (g) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and in respect of which a notice to amend an essential services agreement has been given under section 126 by the employer or the bargaining agent for the bargaining unit, and

  • (i) the essential services agreement has not been amended as a result of that notice, or

  • (ii) if an application referred to in subsection 127(1) was made by the employer or the bargaining agent, the application has not been finally disposed of by the Board;

• (h) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and less than 30 clear days have elapsed since

  • (i) the date an essential services agreement came into force in respect of the bargaining unit, or

  • (ii) the date an application referred to in subsection 123(1) made by the employer or the bargaining agent for the bargaining unit was finally disposed of by the Board, if such an application was made;

• (i) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and in respect of which the employer or the bargaining agent for the bargaining unit has given a notice to amend an essential services agreement and less than 30 clear days have elapsed since

  • (i) the date of the coming into force of the amendment to the essential services agreement as a result of that notice, or

  • (ii) the date the application referred to in subsection 127(1) made by the employer or the employee organization was finally disposed of by the Board, if such an application was made;

• (j) occupies a position that is necessary under an essential services agreement for the employer to provide essential services;

• (k) is included in a bargaining unit in respect of which an essential services agreement binding on the bargaining agent for the bargaining unit and the employer has been suspended by order under section 131;

Obstruction

199 No person shall impede or prevent or attempt to impede or prevent an employee from entering or leaving the employee’s place of work if the employee occupies a position that is necessary under an essential services agreement for the employer to provide essential services.

Arbitral award — additional factor

238.‍21 In addition to the factors set out in section 148, the arbitration board may, if relevant to making a determination under that section in regards to a collective agreement that applies to the bargaining unit determined under section 238.‍14, take into account the impact of the determination on the operational effectiveness of the Royal Canadian Mounted Police.

Request for arbitration

17 If arbitration has been chosen under subsection 103(1) of the Federal Public Sector Labour Relations Act as, or is, by reason of section 238.‍18 of that Act, the process for the resolution of disputes, questions concerning the provision of equitable compensation to employees may be the subject of a request for arbitration under subsection 136(1) of that Act.

Request for conciliation

20 If conciliation has been chosen under subsection 103(1) of the Federal Public Sector Labour Relations Act as the process for the resolution of disputes, questions concerning the provision of equitable compensation to employees may be the subject of a request for conciliation under subsection 161(1) of that Act.