Legal News

statute affects BC health sector contracts

The Health and Social Services Delivery Improvement Act came into force on January 28, 2002. The associated Regulations came into force on March 1, 2002.This legislation alters the structure of bargaining in the BC health sector.

It also profoundly affects the application of parts of the various collective agreements and the health accord. The significant changes in labour relations and collective agreement administration brought about by this legislation are summarized below.

Transferring Services or Functions
The Act allows a health sector employer to permanently transfer functions or services within its own work site, or to another health sector employer.

Where services are transferred within a geographic area of a 50 kilometer radius, an employee who refuses to transfer is deemed to have resigned 30 days after the refusal. An employee who refuses a transfer outside the 50 kilometer radius will receive lay-off notice and be governed by the bumping provisions in the Act, below.

Employees working for denominational health care facilities may refuse to transfer to an employer that is not a denominational facility.

Multi-Site Assignment of Employees
An employer may assign an employee to another of its work sites or to another health sector employer for up to 30 days in any four month period.

If the employer requires an employee to work at more than one work site on a regular ongoing basis, it must post the position accordingly pursuant to the collective agreement.

Employees assigned outside of a geographic radius of 50 kilometers are entitled to reasonable expenses for accommodation, meals and related expenses in accordance with the collective agreement if applicable, or if no collective agreement provision applies, in accordance with employer policies.

Contracting Outside the Collective Agreement
The Act removes all collective agreement restrictions on contracting out for non-clinical services. Non-clinical services are all services except for medical, diagnostic or therapeutic services provided by defined health care professionals to patients admitted to inpatient beds in acute care hospitals.

Facilities that are not acute care hospitals no longer have any collective agreement restrictions on contracting out of services. Acute care hospitals may contract out any services that are not medical, diagnostic or therapeutic services provided by health care professionals to admitted inpatients.

A health sector employer may not be declared the “true employer” of a contractor’s employees by an arbitrator or by the Labour Relations Board, unless the employees are both fully integrated with the health sector employer’s operations and working under the direct control of the health sector employer.

The Labour Relations Code common employer and successorship provisions do not apply to contractors contracting with health sector employers. A contractor may not be declared a common employer with a health sector employer, or a successor to a health sector employer.

Employment Security and Labour Force Adjustment Agreement (“ESLA”)
Employers are not required to carry out any provisions of ESLA or any collective agreement provisions derived from or based on ESLA.

Health Labour Adjustment Agency (“HLAA”)
Employers are no longer required to register vacancies with HLAA.

The operations of HLAA are discontinued except to the extent required to honour outstanding obligations to employees of health sector employers who were laid off before January 28, 2002.

HLAA is to be wound up in accordance with the Society Act.

Layoff Notice
Collective agreement provisions restricting or limiting health sector employers from laying off employees are removed and are prohibited until December 31, 2005. Any collective agreement provisions on conditions prior to giving layoff notice are also removed.

The Act restricts the maximum number of days of layoff notice under collective agreements to 60 days’ notice.

Bumping for employees is now covered by the provisions of the Act.

An employee with greater than five years of seniority may bump an employee with less than five years of seniority, provided that the employee is qualified and capable of performing the duties of the position to be bumped.

An employee with fewer than five years of seniority may bump the most junior employee occupying a position with scheduled hours that differ by no more than 20% from the bumping employee’s scheduled hours, and an hourly wage rate that differs by no more than 5% from the wage rate of the bumping employee’s position.

Employers are to provide laid off employees with a seniority list of employees with less than five years of seniority.

Employees electing to bump within the same work site must advise the employer within 48 hours of receipt of the seniority list from the employer.

Employees electing to bump to another work site within the same seniority list must advise the employer within 7 days of receipt of the seniority list from the employer.

The Health Services and Support Sector bargaining unit is deleted and the Health Services and Support Facilities and Community Subsector bargaining units are restored. The former Articles of Association for the Facilities and Community Subsector Associations of Unions are also restored.

The Labour Relations Board may consider whether a continuation of a certification issued to a union is appropriate. If the Board determines that continuation of the certification is not appropriate, the Board must cancel the certification and determine which trade union will represent employees. The Board may hold a vote among employees to determine trade union representation.

In determining whether to cancel a certification, the Board must consider whether the cancellation will:

  • Improve industrial stability;
  • Enhance operational efficiency of health sector employers;
  • Enhance a health sector employer’s ability to restructure or reorganize its services or functions;
  • Enhance a health sector employer’s ability to integrate services or functions, or
  • Create a single certification to replace multiple certifications where the employees have become or are employees of a single health sector employer.