Acts and Regulations

2019, c.34 - An Act to Amend the Essential Services in Nursing Homes Act

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2019, c.34
An Act to Amend the
Essential Services in Nursing Homes Act
Assented to December 20, 2019
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1Section 1 of the Essential Services in Nursing Homes Act, chapter E-10.5 of the Acts of New Brunswick, 2009, is amended by adding the following definition in alphabetical order: 
“essential services” means services that, if interrupted, would endanger the life, personal safety or health of one or more of the residents of a nursing home.(services essentiels)
2Section 3 of the Act is amended by striking out “, with the exception of nurses registered under the Nurses Act”.
3Subsection 5(1) of the Act is repealed and the following is substituted: 
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 services.
4The heading “Time limits for agreement” preceding section 6 of the Act is repealed and the following is substituted: 
Essential services agreements
5Section 6 of the Act is repealed and the following is substituted: 
6(1)Within seven days after receiving a 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 endeavour to reach an essential services agreement.
6(2)An essential services agreement shall
(a) identify the essential services that are provided by the bargaining unit that need to be maintained during a strike or a lock-out,
(b) identify the level of service to be maintained by the bargaining unit to provide the essential services referred to in paragraph (a),
(c) identify the positions in the bargaining unit as designated positions for the purpose of providing the essential services referred to in paragraph (a), and
(d) set out the procedures to be followed in responding to emergencies and foreseeable changes to the essential services referred to in paragraph (a).
6(3)In endeavouring to reach an essential services agreement, the employer and bargaining agent are required to consider only the needs of the residents of the nursing home in which the employees in the bargaining unit are employed and may not adopt by reference, in whole or in part, an essential services agreement reached by another bargaining unit.
6The Act is amended by adding after section 6 the following: 
Requirements for negotiating an essential services agreement
6.1(1)An employer and a bargaining agent shall negotiate in good faith and make every reasonable effort to reach an essential services agreement within the time limits established by the Board under subsection 6(1).
6.1(2)At any time during negotiations to reach an essential services agreement, an employer or bargaining agent may make a complaint in writing to the Board that the other party has failed to comply with subsection (1), and the Board shall inquire into the complaint.
6.1(3)The time limits for reaching an essential services agreement cease to run from the date the Board receives a complaint until the Board completes its inquiry into the complaint.
6.1(4)If the Board is satisfied after an inquiry that a party has failed to comply with subsection (1), the Board may do any of the following:
(a) issue an order directing the party to comply; or
(b) issue any other order it considers appropriate.
Mediation to assist in reaching an essential services agreement
6.2(1)If an employer and a bargaining agent are unable to reach an essential services agreement, the Board shall appoint a mediator to assist the parties in reaching the agreement.
6.2(2)The employer and the bargaining agent shall each promptly give the mediator a statement setting out the matters on which the parties have agreed, if any, and the matters on which they are unable to agree.
6.2(3)As soon as the circumstances permit after giving the mediator the statements referred to in subsection (2), the employer and the bargaining agent shall meet with the mediator to endeavour to reach an essential services agreement.
6.2(4)Within the time limit established by the Board, or any longer period agreed on by the parties, the mediator shall provide the Board with a report stating that the parties have reached an essential services agreement, or, if an agreement has not been reached, setting out the matters on which the parties have agreed and setting out the matters on which the parties are unable to agree.
6.2(5)If the employer and the bargaining agent reach an essential services agreement with the assistance of the mediator, they shall communicate the essential services agreement to the Board in accordance with section 7.
6.2(6)If the employer and the bargaining agent do not reach an essential services agreement with the assistance of the mediator, the Board shall act under section 8.
6.2(7)The employer and the bargaining agent shall bear their own costs of the mediation and shall equally share all other costs of the mediation, unless otherwise agreed by them.
7The heading “Agreement reached” preceding section 7 of the Act is repealed and the following is substituted: 
Essential services agreement reached by the parties
8Section 7 of the Act is repealed and the following is substituted: 
7If an employer and a bargaining agent are able to reach an essential services agreement within the time limits established under subsection 6(1), the terms of the agreement shall be jointly communicated by the parties to the Board and the Board shall issue an order without delay in accordance with those terms.
9The heading “Agreement not reached” preceding section 8 of the Act is repealed and the following is substituted: 
Essential services agreement not reached by the parties
10Section 8 of the Act is repealed and the following is substituted: 
8(1)If an employer and a bargaining agent are unable to reach an essential services agreement with the assistance of a mediator under section 6.2, the Board, after giving each of the parties an opportunity to present evidence and to make representations, shall issue an order that complies with the requirements of subsections 6(2) and (3).
8(2)The Board shall provide a copy of the order to the employer and the bargaining agent as soon as the circumstances permit after issuing an order under subsection (1).
11The heading “Amendments to an order or a determination” preceding section 9 of the Act is repealed and the following is substituted: 
Amendments to orders
12Section 9 of the Act is amended
(a) in subsection (1) by striking out “a determination made under section”;
(b) by repealing subsection (3) and substituting the following: 
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 issue an amended order without delay in accordance with those terms.
(c) by repealing subsection (4) and substituting the following: 
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 issue an amended order that complies with the requirements of subsections 6(2) and (3) and shall provide a copy of the order to the employer and the bargaining agent as soon as the circumstances permit after issuing the order.
13Section 10 of the Act is repealed and the following is substituted: 
10(1)An order issued by the Board under section 7, 8, 9 or 13.1 binds the employer and the bargaining agent as well as the employees affected by the order.
10(2)An order issued by the Board under section 7 or 8 remains in effect unless amended by the Board under section 9.
14The heading “Communication of the order or determination to employees” preceding section 11 of the Act is repealed and the following is substituted:  
Communication of order to employees
15Section 11 of the Act is repealed and the following is substituted: 
11The Board shall inform all employees in a bargaining unit who are employed in positions that are identified as designated positions in an order issued under section 7, 8 or 9 of the order within the time and in the manner that the Board determines.
16Section 12 of the Act is amended
(a) in subsection (1)
(i) by repealing paragraph (a) and substituting the following: 
(a) an order has been issued under section 7, 8 or 9 that identifies the designated positions in the bargaining unit and the employees in those positions have been informed by the Board;
(ii) in paragraph (b) by striking out the period at the end of the paragraph and substituting “; and”;
(iii) by adding after paragraph (b) the following: 
(c) any applicable requirements of the Industrial Relations Act have been satisfied.
(b) in subsection (3.1)
(i) by repealing paragraph (a) and substituting the following: 
(a) an order has been issued under section 7, 8 or 9 that identifies the designated positions in the bargaining unit and the employees in those positions have been informed by the Board;
(ii) in paragraph (b) by striking out the period at the end of the paragraph and substituting “; and”;
(iii) by adding after paragraph (b) the following: 
(c) any applicable requirements of the Industrial Relations Act have been satisfied.
(c) in the portion preceding paragraph (5)(a) by striking out “, including nurses registered under the Nurses Act,”.
17Subsection 13(1) of the Act is repealed and the following is substituted: 
13(1)Even though the term of a collective agreement or arbitral award last in force between an employer and a 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
(a) an employee in the bargaining unit employed in a designated position who is required to work during a strike or a lock-out, or
(b) all the employees in the bargaining unit, if an order providing for binding arbitration as a dispute mechanism is issued under subsection 13.1(5).
18The Act is amended by adding after section 13 the following: 
Meaningful process for collective bargaining
13.1(1)If a bargaining agent or an employer that is bound by an order issued under section 8 or subsection 9(4) considers that the level of service to be maintained by the bargaining unit to provide essential services has the effect of substantially interfering with a meaningful collective bargaining process, the bargaining agent or employer, as the case may be, may apply to the Board for an order providing for binding arbitration as a dispute mechanism between the parties.
13.1(2)An application referred to in subsection (1) shall be made by written notice to the Board and to the other party within 30 days after the date the Board provides the employer and the bargaining agent a copy of the order issued under section 8 or subsection 9(4), as the case may be.
13.1(3)On receiving an application under subsection (1), the Board shall hear the matter as soon as the circumstances permit and shall issue an order with reasons setting out how it considered the factors in subsection (4).
13.1(4)In determining an application under subsection (1), the Board shall consider
(a) the level of service to be maintained by the bargaining unit to provide the essential services identified in the order,
(b) the positions in the bargaining unit that have been identified as designated positions for the purpose of providing the essential services referred to in paragraph (a), and
(c) any other factor the Board considers relevant.
13.1(5)If the Board determines that the level of service to be maintained by the bargaining unit to provide essential services has the effect of depriving the parties of a meaningful collective bargaining process, the Board shall issue an order that if, after bargaining collectively, the parties fail to conclude a collective agreement or the renewal or revision of an existing collective agreement, all matters remaining in dispute between them shall be settled by binding arbitration in accordance with the Industrial Relations Act and section 13.3.
Prohibited activities
13.2(1)If the Board issues an order providing for binding arbitration as a dispute mechanism under subsection 13.1(5), no employee in the bargaining unit in respect of which the order was issued shall strike or participate in a strike.
13.2(2)No trade union or council of trade unions and no officer, director, representative, employee, agent or advisor of a trade union or council of trade unions shall declare, authorize, continue or counsel a strike of employees in contravention of subsection (1).
13.2(3)If the Board issues an order providing for binding arbitration as a dispute mechanism under subsection 13.1(5), no employer and no officer, director, representative, employee, agent or advisor of an employer shall lock-out employees in the bargaining unit in respect of which the order was issued.
13.2(4)No employer and no officer, director, representative, employee, agent or advisor of an employer shall declare, authorize, continue or counsel a lock-out of employees in contravention of subsection (3).
Mediation and binding arbitration
13.3(1)If an employer and a bargaining agent that are bound by an order under subsection 13.1(5), after bargaining collectively, fail to conclude a collective agreement or the renewal or revision of an existing collective agreement, they are required to request that the Minister of Post-Secondary Education, Training and Labour appoint a mediator under section 70 of the Industrial Relations Act to assist them, and the Minister shall appoint a mediator.
13.3(2)If the employer and the bargaining agent fail to conclude a collective agreement or the renewal or revision of an existing collective agreement with the assistance of the mediator, either of the parties may request that the Board refer all matters remaining in dispute between them to binding arbitration in accordance with the order under subsection 13.1(5).
13.3(3)The Board shall refer all matters remaining in dispute between the parties to binding arbitration in accordance with the Industrial Relations Act if it is satisfied that collective bargaining has been carried out in good faith, including the collective bargaining with the assistance of the mediator referred to in subsection (1), but it considers that it is unlikely that the parties will agree, within a reasonable time, on the conclusion of a collective agreement or to the renewal or revision of an existing collective agreement.
13.3(4)In rendering an arbitral award, an arbitrator shall take into consideration the following factors, and any other factors that the arbitrator considers relevant, for the period in which the arbitral award will apply:
(a) as the primary factor, the wages negotiated through collective bargaining between the Province and public sector employees performing the same or similar functions in the same or similar circumstances as the employees in the bargaining unit, considering the entire compensation package including, but not limited to, retirement plans or pensions, medical and dental benefits, life insurance and disability insurance, shift premiums, bonuses and paid time off;
(b) as the secondary factor, the wages of other unionized private sector employees in New Brunswick and non-unionized private sector employees in New Brunswick performing the same or similar functions in the same or similar circumstances as the employees in the bargaining unit, considering the entire compensation package including, but not limited to, retirement plans or pensions, medical and dental benefits, life insurance and disability insurance, shift premiums, bonuses and paid time off; and
(c) as additional factors: 
(i) the employer’s ability to pay, in light of the fiscal situation of the Province, and
(ii) the need to maintain appropriate relationships in terms and conditions of employment between grade levels within an occupation and between occupations in nursing homes.
13.3(5)In the arbitral award, the arbitrator shall include written reasons that explain how the arbitrator has considered the factors in subsection (4).
19Section 14 of the Act is amended
(a) in subsection (1) by striking out “Every person who violates or fails to comply with subsection 12(1) or (2) or paragraph 12(5)(a)” and substituting “Every person who violates or fails to comply with subsection 12(1) or (2) or paragraph 12(5)(a) or subsection 13.2(1)”;
(b) in the portion preceding paragraph (2)(a) by striking out “Every person who violates or fails to comply with subsection 12(3)” and substituting “Every person who violates or fails to comply with subsection 12(3) or 13.2(2)”;
(c) in subsection (3) by striking out “Every person who violates or fails to comply with subsection 12(3.1) or 12(4)” and substituting “Every person who violates or fails to comply with subsection 12(3.1) or (4) or 13.2(3) or (4)”.
20Section 15 of the Act is repealed and the following is substituted: 
15In addition to any other penalty provided in section 14, on the application of an employer, the Board may revoke the certification of a bargaining agent if a trade union or council of trade unions, or any officer, director, representative, employee, agent or advisor of a 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), paragraph 12(5)(b), or subsection 13.2(2).
21The Act is amended by adding after section 16 the following: 
Disclosure of information
16.1(1)No information or material provided to or received by a mediator under section 6.2 shall be disclosed except to the Board.
16.1(2)No report of a mediator under section 6.2 shall be disclosed except to the Board and the parties.
16.1(3)A mediator appointed under section 6.2 is not a competent or compellable witness in proceedings before any court or other tribunal respecting any information, material or report mentioned in subsection (1) or (2) or respecting any information or material provided to or received by the mediator, or any statement made to or by the mediator in an endeavour to assist the parties reach an essential services agreement.
22Paragraph 18(a) of the Act is repealed and the following is substituted: 
(a) establishing rules of procedure in respect of hearings held under sections 8, 9, and 13.1;
TRANSITIONAL PROVISIONS
Former notices, agreements and determinations void
23On the commencement of this section,
(a) all notices given by an employer under subsection 5(1) of the Act as it read immediately before the commencement of this section are void,
(b) all orders issued by the Board under section 7 of the Act as it read immediately before the commencement of this section are void, and
(c) all determinations made by the Board under section 8 of the Act as it read immediately before the commencement of this section are void.
Essential services agreements to be reached by each employer
24(1)This section applies to an employer if the employer 
(a) had given a notice referred to in paragraph 23(a);
(b) was a party to an agreement that was subject to an order referred to in paragraph 23(b);
(c) was subject to a determination referred to in paragraph 23(c);
(d) is a party to a collective agreement or arbitral award that is in force but that will cease to operate within 6 months after the commencement of this section; or
(e) is a party to a collective agreement or arbitral award that has ceased to operate.
24(2)Despite subsections 5(1) and (2) of the Act, within 60 days after the commencement of this section, in relation to a bargaining unit an employer shall, by notice in writing, advise the Board and 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 services.
No strike or lock-out during period of negotiation of essential services agreement
25(1)On the commencement of this subsection, no employee in a bargaining unit in respect of which a notice is required to be given under subsection 24(2) shall strike or participate in a strike until
(a) an order has been issued under section 7, 8 or 9 of the Act that identifies the designated positions in the bargaining unit and the employees in those positions have been informed by the Board;
(b) at least seven days have elapsed after the bargaining agent for the employees’ bargaining unit informs the Board in writing of its intention to strike; and
(c) any applicable requirements of the Industrial Relations Act have been satisfied.
25(2)On the commencement of this subsection, no employer and no officer, director, representative, employee, agent or advisor of an employer shall lock-out employees in a bargaining unit in respect of which a notice is required to be given under subsection 24(2) until
(a) an order has been issued under section 7, 8 or 9 of the Act that identifies the designated positions in the bargaining unit and the employees in those positions have been informed by the Board;
(b) at least seven days have elapsed after the employer informs the Board in writing of its intention to lock-out those employees; and
(c) any applicable requirements of the Industrial Relations Act have been satisfied.
25(3)On the commencement of this subsection, no trade union or council of trade unions and no officer, director, representative, employee, agent or advisor of a trade union shall declare, authorize, continue or counsel a strike of employees in contravention of subsection (1).
25(4)Every person who violates or fails to comply with subsection (1) commits an offence and is liable on conviction to a fine in accordance with subsection 14(1) of the Act.
25(5)Every person who violates or fails to comply with subsection (2) commits an offence and is liable on conviction to a fine in accordance with subsection 14(3) of the Act.
25(6)Every person who violates or fails to comply with subsection (3) commits an offence and is liable on conviction to a fine in accordance with subsection 14(2) of the Act.
25(7)If a person is found guilty of violating or failing to comply with subsection (3), section 15 of the Act applies with the necessary modifications.