Alberta Announces Overhaul of Workplace Laws

By Birch Miller and Bruce Graham © Blake Cassels & Graydon LLP Apr 3, 2017
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Alberta's government is taking the pen to the province's workplace legislation.

As announced on March 13, 2017, the Employment Standards Code (Employment Standards) and the Labour Relations Code (Labour Code) will be the subject of a brief public consultation (closing April 18, 2017) before the government undertakes its own review and rolls out the first major changes to Alberta's workplace laws in decades.

Together, Employment Standards and the Labour Code govern almost everything about the employment relationship in Alberta's workplaces (outside of federally regulated companies and in addition to human rights and privacy legislation). The Labour Code regulates union work and Employment Standards covers the nonunion labour market.

The government has characterized the forthcoming changes to Alberta's workplace laws as "modest" and "not a full scale review." Still, many employers are concerned about the consequences, particularly given the Alberta New Democratic Party's (NDP's) policies for extending workers' benefits, as well as its long-standing union ties. Anxieties over the impact of such policies on business development and growth are amplified by the government's recent decision to increase the minimum wage and introduce a carbon levy, combined with the ongoing economic uncertainty in Alberta.

Employment Standards

Employment Standards sets the minimum standards to which employers must adhere, including standards for hours of work and overtime requirements, vacation, maternity and paternity leave, general holidays and termination.

The government has not specified the exact changes it intends to make to Employment Standards. However, based upon a review of the government's online consultation, employers may expect to see the introduction of any of the following:

  • An increase in protected leaves (i.e., maternity, parental and compassionate care) and a reduction in the amount of time an employee must be employed in order to become eligible for such leaves.
  • The creation of new unpaid protected leaves for personal short-term sickness or injury, personal emergencies and family responsibilities.
  • Changes to align protected leaves with the federal employment insurance program.
  • An increase in the banked overtime rate from 1:1 to 1:1.5 (i.e., employees will receive 1.5 hours of time off for every one hour of overtime banked).
  • Changes to the calculation of compressed workweek arrangements.
  • Stricter requirements on employers to provide a mandatory paid or unpaid 30-minute break to employees for every five consecutive hours of work.
  • An increase in the instances that employees are entitled to general and statutory holiday pay.
  • Changes to the calculation of an employee's average daily wage.
  • New deductions from employee wages where the employee agrees to such deductions and receives a direct benefit in return (i.e., health and insurance packages, pay advances, meals and lodging).
  • An increase in the opportunities for youth between 13 and 15 to obtain employment.
  • New requirements on employers to notify the Minister of Labour when undertaking a group termination of 50 or more employees at a single location within a four-week period (i.e., potentially including a notification to the affected employees and unions, not just the Minister).
  • Enhanced tools for the government to enforce Employment Standards legislation, including the introduction of administrative and progressive penalties, increased fines, greater authority for employment standards officers and publicly posting the names of employers who fail to satisfy judgments or demonstrate ongoing noncompliance.

Labour Relations Code

Perhaps unsurprisingly, the areas of the Labour Code where the government is considering changes are generally geared toward enhanced union powers and increasing union involvement in Alberta. In addition, any changes are likely to lead to a more robust Alberta Labour Relations Board (Board) as well as broader legislative changes that will impact all unionized workplaces.

In particular, the government is considering whether to:

  • Mandate a "Rand formula" in collective agreements, which requires the obligatory payment of union dues regardless of a worker's status (i.e., workers would no longer be able to opt-out of a union and avoid paying union dues where they benefit from the collective agreement).
  • Change the Labour Code's definition of "employer" and "employee," which could bind more successor employers to collective agreements.
  • Give employees greater freedom in choosing, changing or cancelling union representation (i.e., the introduction of a "card check" system).
  • Make certain unfair labour practice allegations subject to a reverse onus provision, thereby putting the burden on the employer to refute an employee's accusation.
  • Broaden the Board's mandate to adjudicate a wider range of workplace disputes.
  • Enhance the Board's power, procedures and remedial options.
  • Undertake a general review of the Labour Code to see where Alberta's labour laws depart from the Canadian mainstream (in a manner which the government determines is "without benefit").

The government has tasked former Alberta Labour Relations Board Chair Andrew Sims, Q.C. to oversee the Labour Code review.

Conclusion

The government is quick to point out that Alberta's workplace laws have remained unchanged for almost 30 years and that provincial governments elsewhere in the country have responded more rapidly to the changing dynamics of a modern workforce. Given that the legislation is due for an update, and the NDP's orientation toward enhanced rights for workers and unions, it seems likely that the changes to the Employment Standards and the Labour Code will occur during this term of the NDP's mandate.

The government says these changes are necessary to provide a "family-friendly workplace." What remains unclear, though, is the extent to which these changes can co-exist with a business-friendly workplace since many of the proposed changes tip heavily in favour of employees and unions while Alberta's economy remains in a fragile state.

Interested stakeholders can complete the government's consultation online or make written submissions on areas of significance.

Birch Miller and Bruce Graham are attorneys with Blake Cassels & Graydon LLP in Calgary, Alberta.  © Blake Cassels & Graydon LLP. All rights reserved. Reposted with permission of Lexology.

 

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