Bill S-202
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S-202
Second Session, Thirty-ninth Parliament,
56 Elizabeth II, 2007
SENATE OF CANADA
BILL S-202
An Act to amend certain Acts to provide job protection for members of the reserve force
first reading, October 17, 2007
THE HONOURABLE SENATOR SEGAL
0610
SUMMARY
This enactment amends certain Acts to provide a right to a twelve-month leave of absence from and subsequent reinstatement in civil employment under federal jurisdiction for members of the Canadian Forces Reserve if those members are called to or volunteer for active military duty. It also provides extended protection for any members who are injured during the course of their service.
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http://www.parl.gc.ca
2nd Session, 39th Parliament,
56 Elizabeth II, 2007
senate of canada
BILL S-202
An Act to amend certain Acts to provide job protection for members of the reserve force
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. L–2
CANADA LABOUR CODE
1. The Canada Labour Code is amended by adding the following after section 203:
DIVISION VI.1
LEAVE FOR RESERVISTS
Definition of “reserve force”
203.01 In this Division, “reserve force” means the component of the Canadian Forces that is referred to in subsection 15(3) of the National Defence Act.
Entitlement to leave
203.02 An employee who is an officer or non-commissioned member of the reserve force who is called out on service or volunteers for active service, and who has completed six consecutive months of continuous employment with an employer, is entitled to and shall be granted a leave of absence from employment during the period of that service, up to a maximum period of twelve months.
Notification to employer
203.03 (1) Every employee who intends to take a leave of absence from employment under this Division shall
(a) give at least four weeks notice in writing to the employer unless there is a valid reason why that notice cannot be given; and
(b) inform the employer in writing of the length of leave intended to be taken.
Notice of change in length of leave
(2) Every employee who intends to take or who is on a leave of absence from employment under this Division shall give at least four weeks notice in writing to the employer of any change in the length of leave intended to be taken, unless there is a valid reason why that notice cannot be given.
Resumption of employment in same position
203.04 (1) Every employee who takes a leave of absence from employment under this Division is entitled to be reinstated in the position that the employee occupied when the leave of absence from employment commenced, and every employer of such an employee shall, on the expiration of any such leave, reinstate the employee in that position.
Comparable position
(2) Where for any valid reason an employer cannot reinstate an employee in the position referred to in subsection (1), the employer shall reinstate the employee in a comparable position with the same wages and benefits and in the same location.
Wages and benefits affected by reorganization
(3) Where an employee takes leave under this Division and, during the period of that leave, the wages and benefits of the group of employees of which that employee is a member are changed as part of a plan to reorganize the industrial establishment in which that group is employed, that employee is entitled, on being reinstated in employment under this section, to receive the wages and benefits in respect of that employment that that employee would have been entitled to receive had that employee been working when the reorganization took place.
Notice of changes in wages and benefits
(4) The employer of every employee who is on a leave of absence from employment under this Division and whose wages and benefits would be changed as a result of a reorganization referred to in subsection (3) shall notify the employee in writing of that change as soon as possible.
Right to benefits
203.05 (1) The pension, health and disability benefits and the seniority of any employee who takes a leave of absence from employment under this Division shall accumulate during the entire period of the leave.
Contributions by employee
(2) Where contributions are required from an employee in order for the employee to be entitled to a benefit referred to in subsection (1), the employee is responsible for and must, within a reasonable time, pay those contributions for the period of any leave of absence under this Division unless, before taking leave or within a reasonable time thereafter, the employee notifies the employer of the employee’s intention to discontinue contributions during that period.
Contributions by employer
(3) An employer who pays contributions in respect of a benefit referred to in subsection (1) shall continue to pay those contributions during an employee’s leave of absence under this Division in at least the same proportion as if the employee were not on leave unless the employee does not pay the employee’s contributions, if any, within a reasonable time.
Failure to pay contributions
(4) For the purposes of calculating the pension, health and disability benefits of an employee in respect of whom contributions have not been paid as required by subsections (2) and (3), the benefits shall not accumulate during the leave of absence and employment on the employee’s return to work shall be deemed to be continuous with employment before the employee’s absence.
Deemed continuous employment
(5) For the purposes of calculating benefits of an employee who takes a leave of absence from employment under this Division, other than benefits referred to in subsection (1), employment on the employee’s return to work shall be deemed to be continuous with employment before the employee’s absence.
Hospitalization or incapacity
203.06 (1) If, immediately following the employee’s service as an officer or non-commissioned member of the reserve force, the employee is hospitalized or is physically or mentally incapable of performing the duties of the position to which the employee would have been entitled on reinstatement, the period of hospitalization or incapacity is deemed for the purposes of this Division to be part of the period of the employee’s service as an officer or non-commissioned member of the reserve force.
No maximum period for hospitalization or incapacity
(2) The twelve-month maximum referred to in section 203.02 does not apply to any period of hospitalization or incapacity that is deemed to be part of the period of the employee’s service by virtue of subsection (1).
Prohibition
203.07 No employer shall dismiss, suspend, lay off, demote or discipline an employee because the employee has applied for leave of absence in accordance with this Division or take into account the intention of an employee to take leave of absence from employment under this Division in any decision to promote or train the employee.
Prohibition
203.08 During the one-year period following an employee’s reinstatement under this Division,
(a) the employer shall not terminate the employee’s employment without reasonable cause; and
(b) if the employer terminates the employee’s employment, the onus is on the employer to establish that the employer had reasonable cause.
Regulations
203.09 The Governor in Council may make regulations
(a) specifying the absences from employment that shall be deemed not to have interrupted continuous employment referred to in section 203.02, for the purposes of this Division; and
(b) specifying what does not constitute a valid reason for not reinstating an employee in the position referred to in subsection 203.04(2).
Application of section 189
203.1 Section 189 applies for the purposes of this Division.
Inconsistency with National Defence Act
203.11 Despite section 285.12 of the National Defence Act, in the event of any inconsistency between the provisions of this Division, or regulations made under it, and the provisions of Part VII of the National Defence Act or regulations made for the purposes of that Part, the provisions that are most favourable in respect of the employee’s rights and benefits prevail to the extent of the inconsistency.
2003, c. 22, s. 2
PUBLIC SERVICE LABOUR RELATIONS ACT
2. The portion of the definition “public service” in subsection 2(1) of Public Service Labour Relations Act before paragraph (a) is replaced by the following:
“public service”
« fonction publique »
« fonction publique »
“public service”, except in Parts 3 and 3.1, means the several positions in or under
3. The Act is amended by adding the following after section 240:
PART 3.1
EMPLOYMENT PROTECTION FOR RESERVISTS
Interpretation
Meaning of “public service”
240.1 In this Part, “public service” has the same meaning as in subsection 11(1) of the Financial Administration Act.
Division VI.1 of Part III of Canada Labour Code
Application to public service
240.2 Division VI.1 of Part III of the Canada Labour Code applies to and in respect of the public service and persons employed in it as if the public service were a federal work, undertaking or business referred to in that Part except that, for the purpose of that application, “employee” is to be read as a reference to a person employed in the public service.
1996, c. 16
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES ACT
4. The Department of Public Works and Government Services Act is amended by adding the following after section 22:
Definition of “reserve force”
22.1 (1) In this section, “reserve force” means the component of the Canadian Forces that is referred to in subsection 15(3) of the National Defence Act.
Clause in all supply contracts
(2) In every contract for the supply of goods or services entered into under section 20, there shall be inserted an express condition that the supplier of the goods or services under the contract shall grant a leave of absence, on the terms and conditions set out in Division VI.1 of Part III of the Canada Labour Code, to any of its employees who is an officer or non-commissioned member of the reserve force and, for that purpose, “employee” in Division VI.1 is to be read as a reference to a person employed by the supplier.
COMING INTO FORCE
Coming into force
5. The provisions of this Act come into force one year after the day on which the Act receives royal assent or on any earlier day or days that may be fixed by order of the Governor in Council.
Published under authority of the Senate of Canada
Explanatory Notes
Canada Labour Code
Clause 1: New.
Public Service Labour Relations Act
Clause 2: Relevant portion of definition:
“public service”, except in Part 3, means the several positions in or under
Clause 3: New.
Department of Public Works and Government Services Act
Clause 4: New.
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