1 Bill 45 – the Public Sector Services Continuation Act

Bill 45 – the Public Sector Services Continuation Act
General Overview
This Bill imposes additional consequences and penalties for illegal strikes and threats of
illegal strikes, in relation to employees who are prohibited from striking under Division 16 of
Part 2 of the Labour Relations Code (LRC) and the Public Service Employee Relations Act
(PSERA).
These additional consequences and penalties include:
 Automatic dues suspension
 Abatement order, which creates a liability fund
 Civil liability
 Civil contempt for non-payment of an order to pay money
 Administrative enforcement mechanism for employees
 Prohibitions with higher fines than under LRC or PSERA
Application:
The Bill only applies with respect to employees who do not have the right to strike
under the LRC or PSERA. (s.1(1)(f))
These include:
 crown employees,
 employees of agencies (eg: AIMCo, ATB Financial, AGLC and others),
 non-academic staff at public universities, colleges and technical institutes,
 firefighters,
 hospital employees,
 AHS employees, and
 ambulance operators.
Definition of “Strike” and “Strike Threat”:
The Bill applies only in respect if strikes that are illegal under the LRC and PSERA, and
in respect of threats of those illegal strikes. (s.1(1)(f))
“Strike” means any of the following, done by 2 or more employees acting in
combination:
 a cessation of work,
 a refusal to work,
 a refusal to continue to work,
 a slowdown or other diminution of services. (s.1(1)(j))
“Strike threat” means:
 a trade union or its officer or representative calling or authorizing a strike, or
threatening to do so,
 setting an employee vote to determine if they wish to strike, or
 an act or threat to act that can reasonably be perceived as preparation for a
strike.(s.1(1)(k))
A strike threat ends when:
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(1) the trade union gives unequivocal notice to the employer that the strike threat
has ended, and all actions of the trade union, it’s officers and representatives,
and the employees are consistent with that notice, or
(2) the employer knows, or ought reasonably to know, that the strike threat has
ended.
Labour Relations Board Declaration:
The Labour Relations Board may give a declaration that there is or has been a strike or
strike threat (s.5(1)).
If the strike or strike threat is ongoing, the Board must direct that it end, and may also
direct what any person should do or not do in respect of a strike or strike threat.
(s.5(4),(5), & (6))
The application for a declaration can be made by the Minister responsible for the Act,
an employer, or a person authorized by the Lieutenant Governor in Council. (s.5(1))
The Board must expedite the hearing of the application, and must declare whether or
not a strike or strike threat has occurred within 24 hours of the hearing.(s.5(3).
The Board’s directive can be enforced as an order of the Court, such that it could be
contempt of Court to fail to comply with the directive. (s.5(7) & (8))
It is an offence to fail to comply with the terms of a directive. (s.18(1))
A declaration under this section can form the basis for an automatic dues suspension
and an abatement order.
No declaration can be made respecting a strike or strike threat that ends before the Bill
come into force. (s.5(9))
Automatic Dues Suspension:
The deduction of union dues from employee paycheques, and their remittance to the
union, is automatically suspended, if the Labour Relations Board or the Court of
Queen’s Bench makes a declaration, under this Bill, the LRC or PSERA, that a strike or
strike threat has occurred. (s.6(1))
Exception: There is no dues suspension, if the trade union applies to the LRB within 2
days of the Board or Court declaration, and can demonstrate that:
 neither it, nor its officers and representatives, have violated the Act,
 the strike or strike threat was against its express instructions, and
 it has acted consistently with those instructions. (s.6(3))
The dues suspension starts as soon as practicable after the Board disposes of the
trade union’s application, or after the 2 day deadline for that application, if no
application is made. (s.6(2))
The length of the dues suspension is:
 3 months for the first day or partial day of strike or strike threat, and
 1 month for each subsequent day or partial day. (s.6(2)).
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Exception: The dues suspension will be shorter if the trade union can subsequently
demonstrate that:
 it, and its officers and representatives, have ceased any violation of the Act,
 it gave express instructions for the strike or strike threat to end, and
 it has acted consistently with those instructions.
If this is demonstrated to the Board, the strike or strike threat is deemed to have ended
as of the day those criteria are met, and the duration of the dues suspension is
calculated accordingly. (s.6(5),(6)&(7))
It is an offence for an employer to fail to implement the dues suspension, or to fail to
resume dues collection and remittance after the period of suspension is over.
(s.6(1)&(8) & s.18(1))
It is an offence for an employer and trade union to enter into an agreement to
circumvent the dues suspension under the Bill; such an agreement is void. (s.8 &
s.18(1))
An employee is not ineligible for employment with the employer because the employee
failed to pay union dues during a period of suspension. (s.7)
These provisions do not apply in respect of a strike or strike threat that ends before the
Bill comes into force. (s.6(9))
Abatement Order:
If there is a strike or a strike threat, the Minister, an employer, or a person authorized
by the Lieutenant Governor in Council, can apply to the Court of Queen’s Bench for an
abatement order.(s.9(1))
The Court must expedite the hearing of an application for an abatement order. (s.9(5))
In an abatement order, the Court will order the trade union to pay into Court $1,000,000
per day or partial day on which the strike or strike threat continues. (s.9(6),(8)&(9))
The Court will also order the strike threat or strike to be ended and may declare and
direct what any person should do or not do in respect of a strike or strike threat. (s.9(6))
Exception: No abatement order will be made if the trade union can establish that:
 neither it, nor its officers and representatives, have violated the Act,
 the strike or strike threat was against its express instructions, and
 it has acted consistently with those instructions. (s.9(10))
The abatement order ends when, on application to the Court, the trade union
demonstrates either that the strike or strike threat has ended, or that:
 it, and its officers and representatives, have ceased any violation of the Act,
 it gave express instructions for the strike or strike threat to end, and
 it has acted consistently with those instructions. (s.9(11)&(12))
Amounts paid into Court, under and abatement order, form a liability fund in respect of
the strike or strike threat. (s.10)
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It is an offence to fail to comply with an abatement order. (s.18(1))
No abatement order can be made for a strike or strike threat that ends before the Bill
comes into force (s.9(13)).
Civil Liability:
A trade union is liable to an employer for losses the employer suffers as a result of a
strike or strike threat. (s.11(1)(2) &(7)).
Exception: The trade union is not liable if it can establish that:
 neither it, nor its officers and representatives, have violated the Act,
 the strike or strike threat was against its express instructions, and
 it has acted consistently with those instructions. (s.11(8))
An employer has 2 years from the end of a strike or strike threat to apply to the Court of
Queen’s Bench for judgement against a trade union under this section. (s.11(3))
This remedy is in addition to any other remedy that an employer may have to recover
losses suffered as a result of an illegal strike or strike threat. (s.12(1))
Use of Liability Fund:
If there is a liability fund in respect of a strike or strike threat (formed through an
abatement order), that fund can be used to satisfy judgements or awards against the
trade union for losses of employers from the strike or strike threat. (s.11(9)&(10),
s.12(2)&(3))
Any money left over the liability fund will be returned to the trade union after (1) any
judgements or awards against the trade union respecting the strike or strike threat have
been satisfied, or (2) 2 years has passed without any claims against the liability fund.
(s.11(11) & 12(2))
Transfer of Assets to Third Party:
If a trade union transfers assets to a third party, other than for legitimate business
reasons, to avoiding payments or fines under this Act, the LRC or PSERA, and that
hinders the collection of payments or fines, the Court of Queen’s Bench can order that
third party to satisfy the trade union’s obligation, up to the amount transferred to the
third party. (s.13)
This application can be made by the Minister, the employer, or a person authorized by
the Lieutenant Governor in Council. (s.13)
It is an offence to fail to comply with an order of the Court under this section. (s.18(1))
Civil Contempt:
Anyone who, without reasonable excuse, fails to comply with:
 a directive of the Labour Relations Board;
 an abatement order, or
 an order against a third party,
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is in civil contempt. (s.14(1))
The Court of Queen’s Bench may make any orders that it considers necessary to
enforce those directives or orders, including any orders necessary to enforce the
payment of amounts owing under those orders. (s.14(3)&(4))
Prohibitions for Trade Unions:
A trade union must not:
 cause or consent to a strike,
 engage in any conduct that constitutes a strike threat, or
 discipline a person for not contravening the prohibitions in the Act. (s.4)
Prohibitions for Officers and Representatives of Trade Unions:
The officers and representatives of trade union must not:
 cause or consent to a strike,
 engage in any conduct that constitutes a strike threat,
 engage in any conduct that constitutes a strike, or
 discipline a person for not contravening the prohibitions in the Act. (s.4)
Prohibitions for Employees:
Employees must not:
 cause or consent to a strike;
 engage in any conduct that constitutes a strike threat, or
 engage in any conduct that constitutes a strike. (s.4)
General Prohibition:
No person may counsel another to contravene the prohibitions in the Act or impede or
prevent them from complying with the prohibitions in the Act. (s.4)
Administrative Enforcement for Employees:
An administrative penalty can be imposed on an employee who, without reasonable
excuse, violates the prohibitions in the Act. (s.16(1))
Administrative penalties would be imposed by the Minister responsible for the Act or by
a delegate appointed under regulations. (s.16(1))
The maximum penalty is one day’s wage, per day or partial day that the violation
continues. (s.16(2))
There is a 1 year limitation for imposing administrative penalties. (s.16(5))
An employee can request a reconsideration of a decision to impose an administrative
penalty. (s.17)
An employee can appeal an administrative penalty, or a reconsideration of an
administrative penalty to the Labour Relations Board. (s.16(6) & s.17(4)).
An administrative penalty must be paid within 30 days of the later of the imposition of
the penalty or the conclusion of a reconsideration or appeal, failing with it can be
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enforced in the same way as a civil judgement. (s.16(7))
A person who pays an administrative penalty cannot be subject to prosecution for the
same contravention. (s.16(8))
Additional details respecting administrative penalties, reconsiderations and appeals, will
be provided for in Lieutenant Governor in Council regulations. (s.24)
Fines on Conviction:
Failure to comply with one’s obligations under the Bill or with the provisions of a Labour
Relations Board directive, abatement order, or order against a third party is an offence.
(s.18(1))
The fines are set amounts, for each day or partial day the offence continues.
The per day amounts are:
 Trade unions and employers: $250,000 plus $50/day/member of the bargaining
unit.
 Officer or representative of the trade union: $10,000.
 Employee: one day’s wage (to be defined by regulation).
 Other person or entity: $500.
There can be no order for imprisonment in default of a fine payment. (s.18(2))
There is a one year limitation for laying charges under the Act. (s.20)
No prosecution can be commenced without the consent of the Minister. (s.19)
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