m-1.1 - Act to ensure that essential services are maintained in the health and social services sector

À jour au 19 décembre 2002

Ce document a valeur officielle.

chapter M-1.1

Act to ensure that essential services are maintained in the health and social services sector

DIVISION I APPLICABILITY

1. This Act applies to the health and social services institutions, regional boards and councils to which the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors (chapter R‐8.2) applies. It applies also to every association of employees certified to represent employees of an institution, of a regional board or of a regional council and to the employees represented by it, and to every group of which such an association of employees is a member or to which it belongs, is affiliated or is bound by contract.

It applies, in addition, to every operator of ambulance services holding a permit pursuant to Division III of Chapter IV of Title I of the Act respecting pre-hospital emergency services (chapter S‐6.2) and to every association of employees certified to represent employees of such an operator, to the employees represented by such an association and to every group of which such an association of employees becomes a member, to which it belongs, with which it is affiliated or to which it is bound by contract.

This Act shall also apply from 17 July 1989 to

(1)  the Corporation d’urgences-santé referred to in section 87 of the Act respecting pre-hospital emergency services in the same manner as to an institution;

(2)  every health communication centre governed by the Act respecting pre-hospital emergency services, in the same manner as to an operator of ambulance services;

(3)  every association of employees that is certified to represent the employees of the employers referred to in paragraphs 1 and 2 as well as to the employees represented thereby, and to every group of which such association of employees becomes a member or to which it belongs, is affiliated or is bound by contract.

1986, c. 74, s. 1; 1988, c. 40, s. 1; 1988, c. 47, s. 16; 1992, c. 21, s. 177, s. 375; 1994, c. 23, s. 23; 2001, c. 60, s. 166; 2002, c. 69, s. 130.

DIVISION II CONTINUATION OF SERVICES

2. Every employee shall, from 12:01 a.m. on 12 November 1986, perform all the duties attached to his functions in accordance with the conditions of employment that are applicable to him, without stoppage, slowdown, reduction or alteration in his usual activities.

Every employee who has ceased to discharge his duties by reason of a strike shall, from the same time, return to work in accordance with his work schedule.

In the case of an employee of an operator of ambulance services, the obligation imposed by this section applies from 12:01 a.m. on 23 June 1988.

This section does not apply to an employee whose work stoppage is part of a strike held in conformity with the Labour Code (chapter C–27).

1986, c. 74, s. 2; 1988, c. 40, s. 2; 2002, c. 69, s. 131.

3. From 12:01 a.m. on 12 November 1986, every institution or regional council shall take the appropriate measures to see that its usual services are provided.

The same obligation applies, from 12:01 a.m. on 23 June 1988, to the operator of ambulance services.

The same obligation applies, from 12:01 a.m. on 1 October 1992, to every regional board.

1986, c. 74, s. 3; 1988, c. 40, s. 3; 1992, c. 21, s. 178, s. 375; 2002, c. 69, s. 131.

4. No association of employees may declare or carry on a strike or organize any concerted action if such strike or concerted action involves a contravention of section 2 by the employees.

An association of employees may, however, declare a strike by proceeding as in sections 111.11 and 111.12 or, as the case may be, 111.0.23 and 111.0.24 of the Labour Code (chapter C-27).

1986, c. 74, s. 4.

5. Every association of employees shall take the appropriate measures to induce the employees it represents to comply with section 2.

1986, c. 74, s. 5.

6. Every group of associations of employees shall take the appropriate measures to induce every association of employees that is a member of, belongs to, is affiliated to or is bound by contract to that group to comply with section 4.

1986, c. 74, s. 6.

7. No person may, by omission or otherwise, hinder employees in the normal performance of their duties under the conditions of employment applicable to them.

1986, c. 74, s. 7.

8. No person may hinder the access of a person to a place to which he has a right of access to perform his duties or to receive services from an institution, a regional board, a regional council or the operator of ambulance services.

1986, c. 74, s. 8; 1988, c. 40, s. 4; 1992, c. 21, s. 179, s. 375; 2002, c. 69, s. 131.

9. If the employees of an institution, a regional board, a regional council or an operator of ambulance services or of a category of institutions, regional boards, regional councils or operators of ambulance services determined by the Government do not comply with section 2 in sufficient number to ensure that the essential services, as provided in a list or in an agreement, or, if none, in the case of an institution, essential services as provided in sections 111.10 and 111.10.1 of the Labour Code (chapter C‐27), are maintained, the Government may, by order, from such time, for such time and on such conditions as it may fix, exclusively for the purposes of ensuring the provision of essential services, replace, amend or strike out any stipulation of the collective agreement binding the employer and the association of employees which represents such employees relating to the mode by which the employer fills a position or hires new employees and any matter related to work organization.

The Government may also, for the same purposes, by such an order, from such time, for such time and on such conditions as it may fix, replace, amend or strike out any stipulation of the said collective agreement to exclude the new employees hired to provide essential services from the application of the stipulations of the collective agreement relating to seniority.

The provisions of an order made under this section shall, for the period indicated therein, form part of any collective agreement contemplated therein.

1986, c. 74, s. 9; 1988, c. 40, s. 5; 1992, c. 21, s. 180, s. 375; 2002, c. 69, s. 131.

DIVISION III SANCTIONS

§ 1 . — Penal provisions

1992, c. 61, s. 379.

10. Every person who contravenes or incites or encourages a person to contravene any provision of section 2, 3 or 7 is guilty of an offence and liable to a fine

(1)  of $50 to $125 in the case of an employee or other natural person not contemplated in paragraph 2;

(2)  of $6 075 to $30 350 in the case of a person who is an officer, employee or representative of an association of employees or of a group of associations of employees or is the operator of ambulance services or an officer or representative of an institution, a regional board, a regional council or an operator of ambulance services or of a group of institutions, regional boards, regional councils or operators of ambulance services;

(3)  of $24 300 to $121 400 in the case of an association of employees or a group of associations of employees.

1986, c. 74, s. 10; 1988, c. 40, s. 6; 1991, c. 33, s. 74; 1992, c. 21, s. 181, s. 375; 1992, c. 61, s. 380; 2002, c. 69, s. 131.

11. Every association of employees that fails to comply with section 4 or section 5 is guilty of an offence and liable to the fine prescribed in paragraph 3 of section 10 for each day or part of a day during which employees represented by it contravene section 2 while the association has failed to comply with section 5.

1986, c. 74, s. 11; 1992, c. 61, s. 380.

12. Every group of associations of employees that fails to comply with section 6 is guilty of an offence and liable to the fine prescribed in paragraph 3 of section 10 for each day or part of a day during which associations which are members of such group or which belong, or are affiliated or bound by contract to it contravene section 4.

1986, c. 74, s. 12; 1992, c. 61, s. 380.

13. Every person who contravenes section 8 is guilty of an offence and liable to a fine of $1,225 to $12,150.

In the case of a person described in paragraph 2 of section 10, the fine prescribed in the first paragraph is $12,150 to $72,850.

1986, c. 74, s. 13; 1991, c. 33, s. 75; 1992, c. 61, s. 380.

14. Every person who, by act or omission, assists another in committing an offence is guilty of the offence as if he had committed it himself if he knew or should have known that his act or omission would probably result in aiding the commission of the offence.

1986, c. 74, s. 14.

15. Every person who abets, counsels or commands another to commit an offence is guilty of the offence and of any other offence committed by the other as a result of the abetment, counsel or command if he knew or should have known that his action would probably result in the commission of the offence.

1986, c. 74, s. 15.

16. Where an offence described in any of sections 10 to 15 continues for more than one day, a separate offence shall be counted for each day or part of a day during which the offence continues.

1986, c. 74, s. 16; 1992, c. 61, s. 381.

17. Proceedings are brought by the Attorney General or by a person generally or specially authorized by him in writing for that purpose.

1986, c. 74, s. 17; 1990, c. 4, s. 941.

§ 2 . — Deductions

18. Every institution, regional board or regional council shall cease to withhold from the salary of an employee any amount contemplated in section 47 of the Labour Code (chapter C‐27) or any union assessment under a collective agreement, upon the declaration or carrying on of a strike in contravention of section 4 by the certified association of employees representing the employee.

Similarly, every institution, regional board or regional council shall cease withholding any such amount or assessment from the salary of each of its employees represented by an association of employees from such time as the number of employees complying with section 2 is insufficient to provide essential services as provided in an agreement or a list or, if none, in the case of an institution, essential services as provided in sections 111.10 and 111.10.1 of the Labour Code.

Every operator of ambulance services shall also cease to withhold the amounts or assessments referred to in this section where the regional board or regional council, as the case may be, of the territory in which he carries on his activities establishes that the association of employees has declared or carried on a strike in contravention of section 4 or where the number of complying employees is insufficient to provide essential services as provided in a list or in an agreement and the regional board or regional council, as the case may be, so notifies the operator in writing.

1986, c. 74, s. 18; 1988, c. 40, s. 7; 1992, c. 21, s. 182, s. 375; 2002, c. 69, s. 131.

19. The cessation of withholdings under section 18 shall continue for 12 weeks for each day or part of a day during which the work stoppage continues or during which the employer establishes that the number of employees, represented by the association of employees, who are complying with section 2 is insufficient to provide essential services as provided in a list or an agreement or, if none, in the case of an institution, essential services as provided in sections 111.10 and 111.10.1 of the Labour Code (chapter C‐27).

In the case of an operator of ambulance services, the regional board, the regional council or the institution to which Part IV.2 of the Act respecting health services and social services (chapter S‐4.2) applies, as the case may be, of the territory in which the operator carries on his activities shall confirm the duration of any work stoppage and notify him in writing accordingly.

1986, c. 74, s. 19; 1988, c. 40, s. 8; 1992, c. 21, s. 183, s. 375; 1998, c. 39, s. 184; 2002, c. 69, s. 131.

§ 3 . — Reduction of salary

20. No employee who contravenes section 2 may be remunerated for his period of absence.

In addition, the salary to be paid to him under the collective agreement applicable for work done after the offence is reduced by an amount equal to the salary he would have received for each period of absence or cessation if he had complied with section 2.

Every institution, regional board or regional council which ascertains that an offence has been committed under section 2 shall make the deductions resulting from the application of the second paragraph, up to 20 % of the salary for a pay period. It shall then pay the sums to a registered charity, within the meaning of the Taxation Act (chapter I‐3), designated by order of the Government. Every operator of ambulance services shall also make such deductions where the regional board or regional council, as the case may be, of the territory in which he carries on his activities confirms that an offence under section 2 has been committed and the duration of such an offence, and notifies him in writing accordingly.

1986, c. 74, s. 20; 1988, c. 40, s. 9; 1992, c. 21, s. 184, s. 375; 2002, c. 69, s. 131.

21. Any disagreement as to the application of section 20 shall be referred for arbitration as if it were a grievance within the meaning of the applicable collective agreement.

1986, c. 74, s. 21.

22. No reimbursement of the amount contemplated in the second paragraph of section 20 may be ordered unless the employee complied with section 2 or unless he was prevented from complying therewith despite having taken every reasonable means to do so, and his failure to comply with section 2 was not part of any concerted action.

1986, c. 74, s. 22.

§ 4 . — Loss of seniority

23. From the date determined by order of the Government, every employee who is absent from work or ceases to carry on his ordinary activities contrary to section 2 loses one year of seniority for each day or part of a day during which such absence or cessation continues.

If the number of years or of fractions of years of seniority acquired by an employee pursuant to the collective agreement governing him is smaller than the number of years resulting from the application of the first paragraph, the loss of seniority is equal to the number of years or fractions of years acquired.

The employer shall inform the employee of his loss of seniority within 45 days after his return to work.

An employee is entitled to recognition of the years or fractions of years of seniority he has lost by the effect of the application of this section if he complied with section 2 or he was prevented from complying therewith despite having taken every reasonable means to do so, and his failure to comply with section 2 was not part of any concerted action.

Every person to whom a decision taken by the employer pursuant to this section is referred for arbitration has authority only to confirm or quash it on the sole basis of the fourth paragraph.

The loss of seniority resulting from this section shall not have the effect of requiring any employee of an institution, a regional board, a regional council or the operator of ambulance services who has completed his probationary period to undergo another probationary period.

1986, c. 74, s. 23; 1988, c. 40, s. 10; 1992, c. 21, s. 185; 2002, c. 69, s. 131.

§ 5 . — Civil liability

24. An association of employees is liable for any damage caused during a contravention of section 2 by the employees it represents unless it proves that the damage is not a result of the contravention or that the contravention is not part of any concerted action.

Any person who sustains any damage by reason of an act performed in contravention of section 2 may apply to the competent court to obtain compensation.

Notwithstanding article 1003 of the Code of Civil Procedure (chapter C-25), where a user within the meaning of the Act respecting health services and social services (chapter S-4.2) or a recipient within the meaning of the Act respecting health services and social services for Cree Native persons (chapter S-5) institutes a class action under Book IX of the said Code by presenting a motion in accordance with the second paragraph of article 1002 of the said Code, the court shall authorize the institution of the class action if it is of opinion that the user or recipient to which it intends to ascribe the status of representative is in a position to adequately represent the members of the group described in the motion.

1986, c. 74, s. 24; 1992, c. 21, s. 186; 1994, c. 23, s. 23.

DIVISION IV MISCELLANEOUS PROVISIONS

25. This Act does not have the effect of exempting an employee, an association of employees or a group of associations of employees, an institution, a regional board, a regional council or the operator of ambulance services from the application of the Labour Code (chapter C‐27).

1986, c. 74, s. 25; 1988, c. 40, s. 11; 1992, c. 21, s. 187, s. 375; 2002, c. 69, s. 131.

26. The provisions of this Act prevail over any clauses of the collective agreement that are inconsistent therewith.

1986, c. 74, s. 26.

27. (Omitted).

1986, c. 74, s. 27.

REPEAL SCHEDULE

In accordance with section 9 of the Act respecting the consolidation of the statutes and regulations (chapter R-3), chapter 74 of the statutes of 1986, in force on 1 March 1990, is repealed, except section 27, effective from the coming into force of chapter M-1.1 of the Revised Statutes.