2002 Legislative Session: 3rd Session, 37th Parliament
FIRST READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


HONOURABLE GRAHAM BRUCE
MINISTER OF SKILLS DEVELOPMENT AND LABOUR

BILL 66 -- 2002

PUBLIC SECTOR EMPLOYERS AMENDMENT ACT, 2002

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Section 1 of the Public Sector Employers Act, R.S.B.C. 1996, c. 384, is amended

(a) by adding the following definition:

"employment compensation standard" means a standard established under section 14.2 or 14.3 (5); , and

(b) by repealing the definitions of "employment termination standard" and "public sector employee" and substituting the following:

"employment termination standard" means a standard established under section 14.4;

"public sector employee" means a person employed by, or appointed to an office with, a public sector employer, but does not include a justice or a person appointed as a justice; .

2 Sections 4.1 and 4.2 are repealed and the following substituted:

Council access to employment information

4.1 A public sector employer must provide, without charge, to the council copies of contracts of employment and other information that the council requests for the purpose of monitoring compliance with employment compensation standards and employment termination standards.

3 Section 5 (1) is amended by striking out "officers" and substituting "a chief executive officer and other officers".

4 Section 7 (1) is amended

(a) by repealing paragraph (c.2) (i) and (ii) and substituting the following:

(i) as if it were a public sector employer, with any employment compensation standard or employment termination standard that is of general application, or

(ii) with any employment compensation standard that the minister may establish, under section 14.3, specifically for those persons or that association; , and

(b) by repealing paragraph (c.3) (ii) and substituting the following:

(ii) other information that the council requests for the purpose of monitoring compliance with paragraph (c.2); .

5 The following Part is added:

Part 3.1 -- Exempt Employee Compensation

Division 1 -- Definitions

Definitions

14.1 In this Part:

"compensation" includes all remuneration provided to an employee by a public sector employer for service with the employer, whether in the form of money or other benefit;

"effective date" means the date on which the Public Sector Employers Amendment Act, 2002 receives first reading in the Legislative Assembly;

"employee" means a public sector employee who is excluded from membership in a bargaining unit.

Division 2 -- Employment Compensation Standards

Vacation leave and sick leave standards

14.2 (1) Except as provided under subsection (2), an employee is not entitled to

(a) bank, accumulate or carry forward to subsequent employment years any unused vacation leave benefits attributable to any previous employment year, or

(b) be paid out for unused vacation leave for an employment year.

(2) An employee who has unused vacation days for an employment year may, to the extent that the contract of employment allows the carrying forward of unused vacation days,

(a) be paid out for the unused vacation days in the form of a lump sum cash payment in the employment year immediately following the employment year for which the unused vacation leave is attributable,

(b) carry forward the unused vacation days and use them for vacation leave in the employment year immediately following the employment year for which the unused vacation leave is attributable, or

(c) in the employment year immediately following the employment year for which the unused vacation leave is attributable, in part, be paid out under paragraph (a) and, in part, carry forward unused vacation days and use them for vacation leave under paragraph (b).

(3) In respect of sick leave benefits that allow an employee to bank, accumulate or carry forward unused sick days for an employment year, the employee is not entitled to be paid out for any unused sick day in the form of

(a) additional vacation leave, or

(b) a cash payment or any other benefit, other than sick leave.

(4) Subsections (1) to (3) do not apply in relation to an employee's vacation leave benefits or sick leave benefits banked or accumulated on or before December 31, 2002.

(5) The provisions of this section

(a) are deemed to be employment compensation standards for the purposes of this Act, and

(b) are deemed to be included in employees' contracts of employment that are in force on January 1, 2003 or are commenced, changed or renewed on or after that date.

(6) Effective January 1, 2003, any provision of a contract of employment referred to in subsection (5) (b) that conflicts or is inconsistent with an employment compensation standard established by this section is void to the extent of the conflict or inconsistency.

Other compensation standards

14.3 (1) The minister may direct an employers' association or a public sector employer to prepare

(a) one or more compensation plans respecting compensation that will be provided to

(i) employees in the sector or within the employ of the public sector employer, or

(ii) persons employed by the employers' association and who are not subject to a collective agreement, and

(b) a report in respect of each compensation plan required under paragraph (a) describing, in accordance with the minister's directions,

(i) the methodology used in devising the plan, and

(ii) how the employers' association or public sector employer intends to implement and monitor the compensation plan.

(2) The minister may do one or more of the following for the purposes of a direction issued under subsection (1):

(a) make the direction specific to one or more employees or persons referred to in subsection (1) (a) and, for this purpose, may specify a position or an occupation or categories of positions or occupations;

(b) prescribe information that must be included in a compensation plan;

(c) without limiting paragraph (b), require that the employers' association or public sector employer include in the plan

(i) a detailed description of the nature, amount and range of compensation that will be provided to the employees or persons in respect of whom the plan applies, and

(ii) any other information the minister considers appropriate;

(d) prescribe information that must be included in a report referred to in subsection (1) (b);

(e) without limiting paragraph (d), require that the employers' association or public sector employer include in the report

(i) comparisons of actual compensation provided to persons employed in the same or a similar sector, position or occupation, whether those persons are employed in the public sector or the private sector, as considered appropriate by the minister, and

(ii) any other information the minister considers appropriate;

(f) specify the form and manner in which a compensation plan and the report in respect of it are to be prepared and submitted for review by the minister.

(3) The minister may issue different directions under subsection (1) for different employers' associations, public sector employers, public sector employees or persons referred to in paragraph (a) of that subsection.

(4) If directed to prepare a compensation plan and report under this section, the employers' association or public sector employer in respect of whom the direction is issued must, in accordance with the minister's direction,

(a) prepare the plan and report, and

(b) submit them for review by the minister.

(5) If, following a review of a compensation plan, the plan is approved by the minister, that compensation plan is adopted as an employment compensation standard on that approval.

(6) On the minister issuing a direction to an employers' association or a public sector employer under subsection (1), no increase in compensation may be provided to employees or persons in positions or occupations in respect of which the direction is issued unless

(a) a compensation plan in respect of those employees or persons is approved by the minister and the increase in compensation is consistent with the applicable employment compensation standard resulting from the operation of subsection (5),

(b) the increase in compensation was agreed to before the date on which the minister issues the direction and the increase in compensation is consistent with the applicable employment compensation standard, if any, that was in force and effect before the issuance of the direction,

(c) the increase is the result of a change in an employee's or person's position within a range of positions that was established for the sector, employee or person before the issuance of the direction, or

(d) the increase is within a range of compensation that was established for the employee's or person's position before the issuance of the direction.

Division 3 -- Employment Termination Standards

Employment termination standards

14.4 (1) The Lieutenant Governor in Council may, by regulation, establish employment termination standards for an employee.

(2) In making regulations under subsection (1), the Lieutenant Governor in Council may do one or more of the following:

(a) delegate a matter to the council, the Treasury Board, an employers' association, a public sector employer or the minister;

(b) confer a discretion on the council, the Treasury Board, an employers' association, a public sector employer or the minister;

(c) establish different standards for different public sector employers or public sector employees;

(d) specify positions or occupations or categories of positions or occupations for the purpose of paragraph (c).

(3) If the Lieutenant Governor in Council establishes an employment termination standard by regulation under subsection (1), effective on the date on which the regulation comes into force,

(a) the standard is deemed to be included in all applicable contracts of employment that are commenced, changed or renewed on or after that date, and

(b) any provision of an applicable contract of employment referred to in paragraph (a) that conflicts or is inconsistent with the standard is void to the extent of the conflict or inconsistency.

(4) The Employment Termination Standards regulation (B.C. Reg. 379/97) made under this Act before the commencement of this section continues, as amended by this section, and is deemed to have been made under this section.

(5) On the effective date,

(a) the Employment Termination Standards regulation (B.C. Reg. 379/97) is deemed to have been amended as set out in the Schedule to the Public Sector Employers Amendment Act, 2002,

(b) the employment termination standards set out in that regulation are deemed to be included in all applicable contracts of employment that are in force on the effective date or are commenced, changed or renewed on or after that date, and

(c) any provision of an applicable contract of employment referred to in paragraph (b) that conflicts or is inconsistent with any of those standards is void to the extent of the conflict or inconsistency.

(6) Subsection (5) is retroactive to the extent necessary to give it force and effect on and after the effective date.

(7) The amendment to section 5 (2) of the Employment Termination Standards regulation (B.C. Reg. 379/97) made under this section does not apply in relation to an employee with whom a contract of employment was entered into before the effective date and which contract of employment is for a definite term unless that contract of employment is changed or renewed on or after the effective date.

Division 4 -- Compensation Information

Definition and application

14.5 (1) In this Division, "senior employee" means an employee who

(a) earns a base salary above a prescribed amount, and

(b) is not employed in a prescribed position or occupation or category of positions or occupations that may be excluded from the application of this Division.

(2) For the purpose of the definition of "senior employee", the Lieutenant Governor in Council may make regulations

(a) prescribing an amount for the purpose of paragraph (a) of that definition, and

(b) prescribing positions or occupations or categories of positions or occupations for the purpose of paragraph (b) of that definition.

(3) This Division applies to a senior employee's contract of employment that is in force on the effective date or entered into on or after that date.

Compensation information to be specified and provided

14.6 (1) For each senior employee, a public sector employer must provide for the chief executive officer of the council a report specifying all the terms and conditions of employment relating to the senior employee's compensation.

(2) If any change is made to the terms and conditions of employment relating to a senior employee's compensation, the public sector employer must provide for the chief executive officer of the council a revised report specifying each change made to those terms and conditions.

(3) The terms and conditions referred to in subsection (1) and any changes to them must be specified and provided in a form and in a manner acceptable to the chief executive officer of the council.

Filing of contracts of employment and compensation information

14.7 (1) A public sector employer must file with the chief executive officer of the council a report required to be provided in relation to a senior employee under section 14.6 together with a copy of the written contract of employment, if any, for the senior employee

(a) within 15 days after the contract of employment is entered into, and

(b) within 15 days of any change to a term or condition of the senior employee's contract of employment that relates to compensation.

(2) In the case of a contract of employment entered into before this section comes into force, the public sector employer must file the report and copy described in subsection (1) with the chief executive officer of the council before March 31, 2003.

(3) A public sector employer must provide the chief executive officer of the council with any information the chief executive officer of the council may require to be satisfied that a copy of a written contract of employment is a true copy or that the report described in subsection (1) or (2) includes complete and accurate information regarding the terms and conditions of employment.

(4) If a public sector employer fails to comply with subsection (1), (2) or (3), the minister may declare all or part of the contract of employment to be void and on that declaration the contract of employment or part of it, as the case may be, is deemed to be void.

Contracts of employment are public documents

14.8 (1) A provision of a contract of employment that all or part of the contract is to remain confidential is void.

(2) Each senior employee's contract of employment is deemed to include a provision that the contract is a public document and the public sector employer must make the contract, together with any report filed with the chief executive officer of the council in relation to it, available for public inspection in accordance with this section.

(3) A public sector employer must make available for public inspection during normal business hours information in contracts of employment and reports referred to in subsection (2) that would otherwise be available to an applicant making a request under the Freedom of Information and Protection of Privacy Act.

Division 5 -- Tribunal Exclusions

Members of tribunals

14.9 (1) This Part does not apply to

(a) a coroner under the Coroners Act,

(b) the fire commissioner under the Fire Services Act,

(c) an arbitrator under the Residential Tenancy Act,

(d) a governor or director of the Workers' Compensation Board under the Workers Compensation Act, or

(e) a person who is a member of a tribunal designated in the Schedule, when the person is acting in his or her capacity as a member of the tribunal.

(2) The Lieutenant Governor in Council may, by regulation, add a tribunal to the Schedule.

6 Section 15.1 is repealed and the following substituted:

Compliance with Part 3.1

15.1 (1) If, after the effective date of Part 3.1, a person accepts money or receives a benefit from a public sector employer that exceeds the amount or benefit permitted by that Part or by a regulation under that Part, the excess money or cost to the employer of the benefit is a debt that is payable to the government by the person who receives the amount or benefit.

(2) Subsection (1) does not apply if the public sector employer referred to in that subsection recovers the excess money or cost within

(a) the year after the date on which the person accepts the money or receives the benefit that exceeds the amount or benefit permitted by Part 3.1 or by a regulation under that Part, or

(b) a longer period specified by the minister.

7 The following Schedule is added:

Schedule

Designated Tribunals

(section 14.9)

Appeal Board (Motion Picture Act)

Appeal Division (Workers Compensation Act)

BC Benefits Appeal Board

British Columbia Marketing Board (Natural Products Marketing (BC) Act)

British Columbia Securities Commission

British Columbia Utilities Commission

Board of Parole (Parole Act)

Building Code Appeal Board (Local Government Act)

Commercial Appeals Commission

Community Care Facility Appeal Board

Employment and Assistance Appeal Tribunal (Employment and Assistance Act)

Employment Standards Tribunal

Environmental Appeal Board

Expropriation Compensation Board

Farm Practices Board

Financial Institutions Commission

Forest Appeals Commission

Forest Practices Board

Health Care and Care Facility Review Board

Health Care Practitioners Special Committee for Audit (Medicare Protection Act)

Hospital Appeal Board (Hospital Act)

Human Rights Tribunal

Labour Relations Board

Land Reserve Commission

Mediation and Arbitration Board (Petroleum and Natural Gas Act)

Medical and Health Care Services Appeal Board

Medical Review Panel (Workers Compensation Act)

Medical Services Commission (Medicare Protection Act)

Mineral Tax Review Board

Motor Carrier Commission

Private Post-Secondary Education Commission

Property Assessment Appeal Board

Property Assessment Review Panels

Public Service Appeal Board

Review Board (Criminal Code)

Review Panel (Mental Health Act)

Workers' Compensation Review Board .

 
Consequential Amendment

 
Hydro and Power Authority Act

8 Section 32 (7) of the Hydro and Power Authority Act, R.S.B.C. 1996, c. 212, is amended by adding the following paragraph:

(v.1) the Public Sector Employers Act; .

 
Transitional Provision

Transitional -- no action for damages

9 No action for damages or compensation may be brought against the government or any person because of this Act, the amendments made by this Act to the Public Sector Employers Act or a regulation continued or enacted under the Public Sector Employers Act by this Act.

Schedule

(Public Sector Employers Amendment Act, 2002)

1 Section 1 of the Employment Termination Standards, B.C. Reg. 379/97, is amended

(a) by adding the following definitions:

"Act" means the Public Sector Employers Act;

"retiring allowance" means a payment that, by a contract of employment, an employee may receive on or after retirement of the employee from his or her employment in recognition of the employee's service, but does not include the following:

(a) superannuation or a pension benefit;

(b) an amount received as a consequence of the death of the employee;

(c) a benefit designated by the minister; , and

(b) by repealing the definition of "employee" and substituting the following:

"employee" has the same meaning as in section 14.1 of the Act; .

2 Section 2 is amended

(a) in subsection (1) (b) by striking out "an employment contract" and substituting "a contract of employment",

(b) in subsection (2) by striking out "a labour adjustment policy or program approved by the council." and substituting "a labour adjustment policy or program approved by the minister.", and

(c) by adding the following subsection:

(3) A labour adjustment policy or program approved by the council before this subsection comes into force is deemed to be a labour adjustment policy or program approved by the minister for the purposes of subsection (2).

3 The following section is added:

Limitation on retiring allowance

2.1 (1) An employee who receives a notice period or severance must not be given a retiring allowance.

(2) Subsection (1) does not prevent an employer from providing a retiring allowance under a labour adjustment policy or program approved by the minister.

(3) A labour adjustment policy or program approved by the council before this subsection comes into force is deemed to be a labour adjustment policy or program approved by the minister for the purposes of subsection (2).

4 Section 5 is amended

(a) in subsection (1) (a) by striking out "an employment termination plan for the employee that has been approved by the council;" and substituting "an employment termination plan for the employee that has been approved by the minister;",

(b) by adding the following subsection:

(1.1) An employment termination plan approved by the council before this subsection comes into force is deemed to be an employment termination plan approved by the minister for the purposes of subsection (1). , and

(c) in subsection (2) by striking out "24 months." and substituting "18 months."

5 The following section is added:

Executive notice and severance

5.1 (1) In addition to the limits imposed under section 5, this section applies in relation to employees of a public sector employer, other than an employer referred to in paragraph (g) of the definition of "public sector employer" in section 1 of the Act, who are appointed to or employed in the following positions:

(a) deputy minister;

(b) chief executive officer or president of a public sector employer;

(c) superintendent of a school.

(2) The notice period or severance that may be given to an employee in a position referred to in subsection (1) must not exceed

(a) an amount calculated according to an employment termination plan for the employee that has been approved by the Treasury Board, or

(b) if no employment termination plan has been approved by the Treasury Board, the following limits:

(i) up to a 6 month notice period or severance, if the employee has served or been employed in that position for fewer than 12 months;

(ii) up to a 9 month notice period or severance, if the employee has served or been employed in that position for 12 to 17 months;

(iii) up to a 12 month notice period or severance, if the employee has served or been employed in that position for 18 to 35 months;

(iv) up to a 14 month notice period or severance, if the employee has served or been employed in that position for 36 to 47 months;

(v) up to a 16 month notice period or severance, if the employee has served or been employed in that position for 48 to 59 months;

(vi) up to an 18 month notice period or severance, if the employee has served or been employed in that position for 60 or more months.

(3) Treasury Board may not approve an employment termination plan under subsection (2) (a) that would provide an employee more than a 12 month notice period or severance for fewer than 18 months of service or employment.

(4) An employment termination plan approved by the council before this subsection comes into force is deemed to be an employment termination plan approved by the Treasury Board for the purposes of subsection (2).

6 Section 7 is amended by striking out "If an employee is employed under an employment contract for a fixed term the employment contract must" and substituting "If an employee is employed under a contract of employment for a definite term the contract must".

  
Explanatory Notes

SECTION 1: [Public Sector Employers Act, amends section 1]

SECTION 2: [Public Sector Employers Act, re-enacts section 4.1 and repeals section 4.2] maintains the requirement for public sector employers to provide the Public Sector Employers' Council with information for the purpose of monitoring compliance with employment termination standards and employment compensation standards, as established in Part 3.1 proposed by this Bill.

SECTION 3: [Public Sector Employers Act, amends section 5 (1)] adds a reference to a chief executive officer.

SECTION 4: [Public Sector Employers Act, amends section 7 (1)] adds a reference to employment compensation standards under the new Part 3.1.

SECTION 5: [Public Sector Employers Act, enacts Part 3.1]

SECTION 6: [Public Sector Employers Act, re-enacts section 15.1] changes reference to the effective date of the new Part 3.1 and provides that section 15.1 (1) does not apply in specified circumstances.

SECTION 7: [Public Sector Employers Act, enacts a Schedule] adds to the Act a Schedule that lists tribunals for which the new Part 3.1 does not apply.

 
Hydro and Power Authority Act

SECTION 8: [Hydro and Power Authority Act, adds section 32 (7) (v.1)] clarifies that the Public Sector Employers Act applies to the British Columbia Hydro and Power Authority.

SECTION 9: [Transitional -- no action for damages] provides that no action for damages or compensation may be brought against the government or any person because of the Act.

SCHEDULE: [Amends the Employment Termination Standards, B.C. Reg 379/97]


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