Bill 118, Performance Pay and Bonuses in the Public Sector Act (Management and Excluded Employees), 2012

Bill 118 2012

An Act respecting performance pay and bonuses for management and excluded employees in the public sector

This Act amends the Broader Public Sector Accountability Act, 2010.  For the legislative history of the Act, see the Table of Consolidated Public Statutes – Detailed Legislative History at www.e-Laws.gov.on.ca.

CONTENTS

1.	Restriction re performance pay and bonuses
2.	Application, public sector employers
3.	Application, management and excluded employees
4.	Enforcement
5.	Conflict
6.	Regulations
7.	Broader Public Sector Accountability Act, 2010
8.	Commencement
9.	Short title

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Restriction re performance pay and bonuses

   1.  (1)  An employment contract entered into or renewed between a public sector employer and a management or excluded employee during the period described in subsection (2) cannot authorize any of the following in respect of work performed during that period:

    1.  Performance pay: an increase in a payment or benefit related to an assessment of the employee's performance, or a new or additional payment related to an assessment of his or her performance.

    2.  Bonuses: any other bonus and any other type of incentive pay.

Effective period

   (2)  The period referred to in subsection (1) begins on the day this Act comes into force and ends on January 1, 2015.

Same

   (3)  If an office holder has a new appointment but remains in the same office, the new appointment is deemed to be a renewal for the purposes of this section.

Time off

   (4)  For greater certainty, time off is a benefit for the purposes of this section.

Terms not in a contract

   (5)  If an employee's terms of employment are not set out in an employment contract, this Act shall apply with respect to such terms of employment as though they had been set out in a employment contract and if such a term of employment is changed it shall be deemed to have been changed by a renewal of that employment contract.

Application, public sector employers

   2.  (1)  This Act applies to the following public sector employers:

    1.  The Crown in right of Ontario, every agency thereof and every authority, board, commission, corporation, office or organization of persons a majority of whose directors, members or officers are appointed or chosen by or under the authority of the Lieutenant Governor in Council or a member of the Executive Council.

    2.  The Office of the Lieutenant Governor of Ontario, the Office of the Assembly, members of the Assembly, and the offices of persons appointed on an address of the Assembly.

    3.  Every board as defined in the Education Act.

    4.  Every university in Ontario and every college of applied arts and technology and post-secondary institution in Ontario whether or not affiliated with a university, the enrolments of which are counted for purposes of calculating annual operating grants and entitlements.

    5.  Every hospital referred to in the list of hospitals and their grades and classifications maintained by the Minister of Health and Long-Term Care under the Public Hospitals Act.

    6.  Every board of health under the Health Protection and Promotion Act.

    7.  Hydro One Inc., each of its subsidiaries, Ontario Power Generation Inc. and each of its subsidiaries.

    8.  The University of Ottawa Heart Institute/Institut de cardiologie de l'Université d'Ottawa.

    9.  The Independent Electricity System Operator.

  10.  Every other authority, board, commission, corporation, office or organization of persons that is prescribed for the purposes of this Act.

Same

   (2)  This Act applies to every employer that is an authority, board, commission, corporation, office or organization of persons, other than one described in subsection (1) or (3), that meets the following conditions:

    1.  It received at least $1,000,000 in funding from the Government of Ontario in 2011, as determined for the purposes of the Public Sector Salary Disclosure Act, 1996.

    2.  It does not carry on its activities for the purpose of gain or profit to its members or shareholders.

Exceptions

   (3)  This Act does not apply to the following employers:

    1.  Municipalities.

    2.  Local boards as defined in subsection 1 (1) of the Municipal Act, 2001. However, this exclusion does not apply with respect to boards of health.

    3.  Every authority, board, commission, corporation, office or organization of persons some or all of whose members, directors or officers are appointed or chosen by or under the authority of the council of a municipality, other than one described in subsection (1).

    4.  Every other authority, board, commission, corporation, office or organization of persons that is prescribed for the purposes of this subsection.

Deemed employees

   (4)  For the purposes of this Act, the directors, members and officers of an employer are deemed to be employees of the employer.

Employer of office holders

   (5)  A reference in this Act to the employer of an office holder is a reference to the employer to which the office holder is elected or appointed, and the use of this terminology is not intended to create a deemed employment relationship between them for the purposes of this or any other Act or any law.

Application, management and excluded employees

   3.  (1)  This Act applies to every management or excluded employee employed by an employer to whom this Act applies.

Interpretation, management or excluded employee

   (2)  A management or excluded employee is an employee who is not represented by one of the following bargaining organizations that represents two or more employees for the purpose of collectively bargaining, with their employer, terms and conditions of employment relating to compensation:

    1.  A trade union certified or voluntarily recognized under the Labour Relations Act, 1995.

    2.  An organization that represents employees under the Crown Employees Collective Bargaining Act, 1993.

    3.  An organization designated to represent employees under the Education Act.

    4.  An employee organization as defined in section 1 of the Provincial Schools Negotiations Act.

    5.  An organization that represents employees under the Colleges Collective Bargaining Act, 2008.

    6.  An association recognized under the Police Services Act.

    7.  The Association as defined in section 1 of the Ontario Provincial Police Collective Bargaining Act, 2006.

    8.  An association recognized under Part IX of the Fire Protection and Prevention Act, 1997.

    9.  An organization that, before this Act received Royal Assent, had collectively bargained, with the employer, terms and conditions of employment relating to compensation that were implemented by the employer.

  10.  An organization that, before this Act received Royal Assent, had an established framework for collectively bargaining, with the employer, terms and conditions of employment relating to compensation.

  11.  Another prescribed organization.

Other exceptions

   (3)  This Act does not apply to such other classes of employees as may be prescribed.

Enforcement

   4.  If an employer to which this Act applies is an employer to which the Broader Public Sector Accountability Act, 2010 applies, Part VII (Enforcement Provisions) of that Act applies to anything the employer does that is governed by this Act.

Conflict

   5.  (1)  This Act prevails over any provision of an employment contract entered into on or after the day this Act comes into force and before January 1, 2015 and, if there is a conflict between this Act and an employment contract, the employment contract is inoperative to the extent of the conflict.

Same

   (2)  This Act prevails over any other Act and over any regulation, by-law or other statutory instrument.

Same

   (3)  For greater certainty, this Act prevails over section 7.17 of the Broader Public Sector Accountability Act, 2010 and section 12 of the Public Sector Compensation Restraint to Protect Public Services Act, 2010.

Exception

   (4)  Nothing in this Act shall be interpreted or applied so as to reduce any right or entitlement under the Human Rights Code or the Pay Equity Act.

Same

   (5)  Nothing in this Act shall be interpreted or applied so as to reduce any right or entitlement provided under section 42 or 44 of the Employment Standards Act, 2000.

Same

   (6)  Nothing in this Act shall be interpreted or applied so as to prevent the application of the insurance plan under the Workplace Safety and Insurance Act, 1997 on or after the day this Act receives Royal Assent to an individual to whom the insurance plan did not apply on that day.

Regulations

   6.  The Lieutenant Governor in Council may make regulations in respect of any matter that, in this Act, is permitted or required to be prescribed or specified by regulation.

Broader Public Sector Accountability Act, 2010

   7.  (1)  Subsection 7.8 (1) of the Broader Public Sector Accountability Act, 2010 is amended by striking out "Subject to subsection (3)" at the beginning.

   (2)  Subsection 7.8 (3) of the Act is repealed.

Commencement

   8.  This Act comes into force on the day it receives Royal Assent.

Short title

   9.  The short title of this Act is the Performance Pay and Bonuses in the Public Sector Act (Management and Excluded Employees), 2012.

 

EXPLANATORY NOTE

The Bill enacts the Performance Pay and Bonuses in the Public Sector Act (Management and Excluded Employees), 2012. The Act provides that new or renewed employment contracts with certain employees in the public sector cannot authorize performance pay or bonuses.

The Act applies to the employers listed in section 2. The Act does not apply to employees represented by bargaining organizations listed in section 3. The restraint measures begin on the day the Act receives Royal Assent and end on January 1, 2015.