Canada: Atlantic Canada Legislative Update

It has been another busy year for legislatures in New Brunswick, Newfoundland and Labrador, Nova Scotia and Prince Edward Island for creation of new, and changes to, labour and employment legislation. The following is an update of legislation from 2012 that employers will want to ensure they are aware of as we move into 2013.

1. NEW BRUNSWICK

(A) AMENDMENTS AND NEW LEGISLATION:

Apprenticeship and OccupationalCertification Act, SNB 2012, c. 19

This Act replaced the former Act of the same name and is now in effect. It abolishes the local apprenticeship advisory committees established under the former Act , and establishes an apprenticeship and occupational certification board that has decision-making authority over voluntary occupations. The board sets general program requirements; designates, rescinds and makes changes to voluntary occupations; makes exemptions to compulsory trades in conjunction with the minister; and determines such things as pass marks and hours required for certification. The provincial government continues to be responsible for administering the Act, including setting budgets, fees and fair wages for apprentices.

Human Rights Act (amendments), SNB 2012, c. 12

Previously, when mediation was unsuccessful in settling a human rights complaint that the New Brunswick Human Rights Commission believed should proceed, the commission would recommend to the minister of post-secondary education, training and labour to appoint a board of inquiry. The minister had discretion as to whether and when to appoint a board, and whether to appoint an adjudicator to hear the complaint or to refer it to the Labour and Employment Board. The Human Rights Act was amended to allow the commission to refer complaints directly to the Labour and Employment Board, so as to avoid the appearance of political interference. This amendment came into effect on June 13, 2012.

Pension Benefits Act (amendments), SNB 2012, c. 38

These amendments (Bill 63) came into force on July 1, 2012, and set out the framework for the Shared Risk Pension Plan (SRPP), which will be available to New Brunswick members of new and existing private and public sector pension plans. The SRPP is essentially a type of contributory, career average defined benefit pension plan that provides base benefits (including ancillary benefits), based on fund returns. The amendments also permit phased retirement in defined benefit plans. British Columbia, Alberta, Saskatchewan, Manitoba, Quebec and the federal jurisdictions all currently permit phased retirement. Nova Scotia, Ontario and Prince Edward Island have recently proposed legislation to permit phased retirement.

Further amendments to the Pension Benefits Act (Bill 20) received Royal Assent in December and are mostly deemed in effect retroactively to July 1, 2012, to coincide with the coming into force of the SRPP amendments noted above. Among other things, the amendments clarify that conversion to a SRPP may occur, and vested benefits may be affected, despite the terms of any contract or trust. The amendments extend existing immunity provisions to parties involved in the conversion of pension plans to SRPPs, including employers, trade unions that represent members and employee organizations that are bargaining agents of members.

Section 5 of Bill 20, that deals with the City of Saint John and the power to amend a memorandum of understanding with city unions, will come into effect on a future date by proclamation.

(B) AMENDMENTS PASSED PRIOR TO 2012 THAT CAME INTO FORCE THIS YEAR:

Right to Information andProtection of Privacy Act, SNB 2009, c. R-10.6

Definitions under this Act became effective April 1, 2012.

Educational and local government bodies came under the Right to Information and Protection of Privacy Act in September and October. The Act now applies to universities, community colleges, schools, school districts, district education councils, municipalities, local service districts and rural communities. In April 2013, local boards, including water and waste water commissions and regional service commissions will come under the Act.

Essential Services in Nursing Homes Act, SNB 2011, c. 29

Amendments, outlined in the 2012 update were proclaimed in force effective August 30, 2012.

2. NEWFOUNDLAND AND LABRADOR

(A) AMENDMENTS AND NEW LEGISLATION:

Access to Information and Privacy Act (amendments), SNL 2012, c. 25

For those employers who are covered by the Access to Information and Protection of Privacy Act (ATIPPA), there are new provisions in effect as of June 2012 relating to the release of employee relations information. ATIPPA applies to "public bodies" and public sector employers should take note of the following changes.

  • A workplace investigation is one relating to an employee's conduct in the workplace, harassment or the interaction between a public body employee with a member of the public or another employee, where that conduct may give rise to discipline by the public body employer;
  • Disclosure of information relating to a workplace investigation should be limited to the parties to that investigation, e.g., the complainant and employee involved;
  • Where a person is a witness involved in a workplace investigation, the witness has access only to the records that relate to him or her;
  • ATIPPA mandates that the head of a public body shall not disclose any information that would reveal the substance of workplace investigation records to anyone who is not a party to the investigation;
  • The head of a public body has discretion to refuse to disclose confidential labour relations information, or that which could harm the public body's competitive position, negotiation position or create significant financial loss or gain; and
  • The head of a public body may refuse to disclose the underlying information provided to, or the report of, a person or body appointed to inquire into or resolve a labour relations dispute.

Labour Relations Act (amendments), SNL 2012, c. 30
The Labour Relations Act (LRA) was amended as of June 27, 2012 and is now in effect. A discussion of those changes was addressed in our June 22, 2012 client update. Highlights of the amendments include:

  • A new card-based certification system, requiring automatic certification in instances where 65 per cent of the employees in the bargaining unit sign a union membership card. If between 40 and 64 per cent of the employees sign cards, a certification vote is required;
  • The requirement to secure "special project" designation under the legislation is reduced to two years, from the previously required three years;
  • A "special project" may be defined either by its geographic site or its scope of work, and more than one special project may overlap in duration and location;
  • Recognizing the right of an employer to communicate with employees so long as the employer does not do so in a manner that is intimidating, coercive, threatening or attempts unduly to exert influence;
  • New provisions relating to mediation of a first collective agreement and imposing time frames for the Labour Relations Board where a first collective agreement is imposed;
  • Where it is requested, the Act now requires that the parties to a collective agreement establish a labour management committee;
  • The Labour Relations Board has additional powers to address a failure to bargain in good faith; and
  • During negotiations, to allow either party to request that a vote of the employees in the bargaining unit be conducted to accept or reject either party's most recent offer.

Public Service Collective Bargaining Act (amendments), SNL 2012, c. 31

The Public Service Collective Bargaining Act (PSCBA) was amended as of June 27, 2012, but has not yet come into force. Highlights of the amendments include:

  • During collective bargaining, the employer may request that a vote of the employees in the bargaining unit be conducted, to measure employee acceptance or rejection of the employer's most recent offer.

The Labour Relations Board is called upon to administer this process, with the result that proclamation will occur once the board has developed appropriate processes and procedures to carry out the legislation. Keep an eye out for a further client update in 2013 when this new provision comes into effect.

Pension Benefits Act SNL1996, cP-4.01

The provincial government has approved a series of changes to provincial pension legislation to allow the minister, with the approval of the Lieutenant-Governor in Council, to enter into an agreement governing multi-jurisdictional pension plans where the agreement contains provisions that are not in the Act or the legislation of another jurisdiction. The Newfoundland and Labrador government session ended in late December. We will update on the progress of this legislation from the 2012 session once information is publicly available.

Workplace Health, Safety and Compensation Act (amendments), RSNL 1990, c W-11

This bill amends the Workplace Health, Safety and Compensation Act to enable the creation of regulations to provide workplace health, safety and compensation coverage to volunteers engaged in search and rescue activities and auxiliary policing services. The Newfoundland and Labrador government session ended in late December. We will update on the progress of this legislation from the 2012 session once information is publicly available.

(B) REGULATIONS:

Occupational Health and Safety Regulations, 2012, NLR 5/12

The main changes relate to the mining industry and to blasting operations and came into effect as of March 20, 2012. The Mines Safety of Workers Regulations have now been repealed, and replaced with provisions found in the Occupational Health and Safety Regulations 2012. The new regulations are intended to be comprehensive, simplifying the process of locating applicable rules for employers and minimizing duplication.

Key elements of the new regulations include changes relating to:

  • A requirement for increased signage when blasting operations are being carried out;
  • Transportation of explosives, including a requirement to identify a vehicle carrying explosives; and
  • Modernization of safety requirements for mining operations, relating to ventilation, mine design, and emergency procedures for mine rescue.

3. NOVA SCOTIA

(A) AMENDMENTS AND NEW LEGISLATION:

Transgendered Persons Protection Act, SNS 2012, c. 51

This legislation amends the Human Rights Act to include "gender identity" and "gender expression" as prohibited grounds of discrimination. It was proclaimed and the amendment came into force on December 6, 2012.

Workers' Compensation Act (amendments), SNS 2012, c. 65

Amendments to the Workers' Compensation Act gives the board the ability to adjust an amount of compensation as a permanent impairment benefit to a coal miner if an increase in the coal miner's loss of lung function was not taken account at the most recent determination of the coal miner's permanent impairment rating. This legislation came into force on December 6, 2012 and is retroactively in effect as to June 23, 2011.

(B) REGULATIONS:

As we reported in our 2011 update, an Act Respecting Pension Benefits (Bill No. 96) received Royal Assent and becomes effective on proclamation. Proclamation has not yet occurred because, before becoming law, regulations must be in place to give full effect to the new legislation. The province has recently posted draft regulations and is seeking public comment on those regulations by January 7, 2013.

(C) AMENDMENTS PASSED PRIOR TO 2012 THAT CAME INTO FORCE THIS YEAR:

Trade Union Act (amendments), SNS 2011, c. 72

Bill No. 102, an Act to prevent unnecessary labour disruptions and protect the economy by amending chapter 475 of the revised statutes, 1989, the Trade Union Act introduced first contract arbitration and was proclaimed and came into force on January 24, 2012. For a more detailed update on this legislation see our 2011 Atlantic Canada Legislative update here.

4. PRINCE EDWARD ISLAND

There have been a number of changes that affect particular industries in P.E.I. including: mobility issues for registered nurses; significant updates to legislation surrounding apprenticeship plans for the trades; and a new requirement that employers educate their employees on the use of fall protection mechanisms. We have also seen the third introduction of a proposed Pension Benefits Act for Prince Edward Island.

(A) AMENDMENTS AND NEW LEGISLATION:

Registered Nurses Act, RSPEI 1988, c R-8.1

Bill 17, makes changes into the Registered Nurses Act which are intended to address labour mobility concerns, and meet requirements as set forth in the Labour Mobility Act. The changes to the legislation make modifications to the registration and licensing requirements which affect registered nurses with credentials from other Canadian jurisdictions. The bill received royal assent on December 7, 2012 and comes into force on a future date by proclamation.

Apprenticeship and Trades Qualification Act, RSPEI 1988, c. A-15.2

Bill No. 8 replaces the previous legislation with the same name. The new legislation is significantly more comprehensive than the old Act The new legislation clarifies the powers and duties of the Provincial Apprenticeship Board. Additionally, it allows the board to establish trade advisory committees, and to grant those committees the ability to perform any of the duties of the board.

The new Act also provides further guidance on the development of apprenticeship plans. It clarifies what is required in those agreements, and establishes the matters which the board believes are essential to becoming a successful apprentice within a specific trade.

The new Act came into effect on May 30, 2012.

Human Rights Act (amendments) SPEI 2012, c. 19

Bill No. 23 resulted in minor changes to the definition of "disability". The amendment does not substantively change the law, but the new language clarifies the meaning of "disability".

A new section was added to the Act to address the situation where the Human Rights Commission encounters a complaint made by someone other than the person affected. The executive director now has the discretion to refuse to hear a complaint brought by someone other than the affected person, unless there is written consent by the affected person.

The amendments to the Human Rights Act became effective May 30, 2012.

Bill No. 12 - Pension Benefits Act – first reading only

Bill No. 12 is the third introduction of the Pension Benefits Act in P.E.I.. It is very similar to a Bill No. 41, from the spring session (64th Gen. Ass., 2nd Sess.). For a more comprehensive review of Bill No. 41, visit our HR Law blog Bill No. 12 is also reviewed on our HR Law blog. The two bills are substantively the same. One notable difference between the two bills was made to address the elimination of partial windups. Bill No. 12 did not make it past first reading and we expect that there will be further discussion on the Pension Benefits Act after the Spring Sitting of the legislature commences on March 26, 2013.

(B) REGULATIONS:

Occupational Health and Safety – Fall Protection Regulations, P.E.I. Reg EC633/04

The fall protection regulations made under the Occupational Health and Safety Act were amended this year to require employers to train employees on the use of fall protection. Previously, the employer was required to provide a means of fall protection in specified circumstances, but there was no specific requirement to train the employees on how to use that protective means. The employer is also required to make records regarding this training, and retain those records until two years after the employment relationship ends. These regulations came into effect on June 9, 2012.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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