Canada: Modernization of Labor Code Proposed

 

By Michael Comartin and Shir Fulga © 2018 Ogletree Deakins November 9, 2018
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​Workplace laws in Canada are in a state of flux following several announcements made by provincial and federal governments in recent weeks. For example, the federal government announced its intention to introduce proactive pay equity legislation. The most recent of these announcements is federal Bill C-86, Budget Implementation Act, 2018, No. 2, which had a first reading on Oct. 29, and would bring sweeping changes to the Canada Labor Code. These changes, if implemented, will impose greater costs and obligations on federally regulated employers in Canada, such as telecommunications companies, airlines, railways, interprovincial transportation companies and banks.

These changes would provide greater protection to workers, and they come at a strategic time. In Ontario, Bill 47 sets out to repeal many of the amendments the former liberal provincial government introduced through Bill 148. The federal government has been quite vocal about its disapproval of Bill 47. In fact, the new proposed amendments to the Canada Labor Code resemble the changes introduced by the former liberal government in Ontario.

As a result, federal employers may want to be prepared for what is effectively the federal version of Bill 148. The new changes would tackle differential treatment on the basis of employee status, scheduling and break period rights, and paid vacation rights, as well as call for the elimination of minimum length of service requirements for general holiday pay and leaves of absence. Most notably, the new bill would introduce new types of leaves that resemble initiatives taken by some provinces.

Here are some highlights of Bill C-86.

Employee Status—Equal Treatment

The federal government took a cue from the former Ontario liberal government in introducing a prohibition on differential pay based on employee status. The Labor Code would mandate pay equity between part-time, temporary, and casual workers and full-time employees. An employee who believes his or her rate of pay violates the equal treatment provision could file a written request for review with his or her employer. Employers would be prohibited from making a reduction to an employee's rate of pay to comply with the equal treatment provision. Further, employers would now be expected to inform all employees, regardless of status, of all promotion opportunities.

Hours of Work and Scheduling Rights

To date, the Labor Code does not provide for a statutorily mandated break. The new amendments would entitle employees to a 30-minute unpaid break. The length of shift that would require such a break has yet to be determined. Employees would also be entitled to at least eight consecutive hours of rest between shifts, subject to exceptions.

With respect to scheduling, employers would have to provide at least 96 hours' notice of schedules. Employees would have the right to refuse shifts scheduled less than 96 hours in advance without fear of reprisal. Employee refusals would be subject to exceptions, such as situations in which the employer could not have reasonably foreseen the need for last-minute scheduling.

Vacation Entitlements

If the bill is implemented, the vacation provisions in the Labor Code will be changed to reflect more generous annual paid vacation entitlements for employees based on years of service:

  • Two weeks' annual paid vacation after completion of one year of employment.
  • Three weeks' annual paid vacation after completion of five years of employment with the same employer.
  • Four weeks' annual paid vacation after completion of 10 years of employment with the same employer.

Leaves of Absence

One of the most significant changes to the Labor Code would be the introduction of reformed leave of absence provisions for employees. The new bill seeks to eliminate minimum length of service requirements for leave entitlements. To date, only employees who have completed six months of service with an employer are entitled to leave.

The bill proposes three new types of leave:

  • Family violence leave. Employees who are victims of family violence would be entitled to five days of paid leave. This leave is designed to reflect the amendments in several provinces that provide for leave as a result of sexual or domestic violence.
  • Personal leave. Employees would be entitled to personal leave of five days, three of which would be paid.
  • Leave for court and jury duty. Every employee who is required to attend court as a witness or as a juror would be entitled to receive unpaid leave.

Notice Period for Termination of Employment

The new bill would create more generous termination provisions for dismissed employees based on their length of service. The new notice periods would range from two to eight weeks.

Michael Comartin is an attorney and Shir Fulga is an articling student with Ogletree Deakins in Toronto. © 2018 Ogletree Deakins. All rights reserved. Reposted with permission of Lexology.

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