Canada: The International Comparative Legal Guide to: Employment & Labour 2016 - Canada

1 Terms and Conditions of Employment

1.1 What are the main sources of employment law?

Several sources of employment law exist in Canada; firstly, there are a host of federal and provincial statutes specifically designed to deal with employment issues including employment standards, workers' compensation and workplace discrimination. There is also the common law in each province (the Civil Code in the province of Québec), as well as jurisprudence by Canadian courts. In Québec, various texts by legal scholars, called "doctrine", can also inspire employment law and finally, the contract of employment between the parties can be a source of law between them.

1.2 What types of worker are protected by employment

law? How are different types of worker distinguished?

Only workers who are considered "employees" are protected by employment law. Workers are distinguished on the basis of whether they are employees or independent contractors. Most employment laws will have specific definitions of who constitutes an employee within the meaning of that law. In general, an employee will be a person who works for remuneration according to the instructions and under the supervision or control of another person. Many protective measures benefit employees including, for example, the right not to be dismissed without just and sufficient cause if an employee has more than two years of continuous service (Québec), protection against reprisals for employees who are pregnant, or who are required to be absent for the purposes of child or family care, etc. All employees are protected against the right to be dismissed with a prior reasonable notice if there is no cause for dismissal. Employees can also be distinguished on the basis of whether they are ordinary employees or management personnel. Employees are distinguished from managers on a number of factors, including hours of work, mode of remuneration and whether they have the ability to hire and dismiss other workers in the course of exercising their work. The distinction is relevant as certain legal treatments may differ for employees and managers, as well as for senior managers.

1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?

No. The employment contract is not subject to any particular formality in Canada. Even a verbal agreement can constitute an employment contract, assuming that it can be proven. In practice, the great majority of employment contracts in Canada are not made in writing. Nor is there any requirement that employees be provided with any specific information in writing at the time of hiring. As such, it is common for employees to have either a simple verbal agreement or an informal letter of hire when they are employed. More senior executives may have a more formal written agreement which will contain detailed terms and conditions of employment.

1.4 Are any terms implied into contracts of employment?

Yes. Regardless of what form the employment contract takes, all employment relationships implicitly include the employer's obligation to provide work, to pay for the work and to provide a safe working environment for its employees. As for the employee, every contract of employment implies that the employee will carry out the work and be loyal to his employer, not only during the term of employment but also for a reasonable period of time after termination of employment.

1.5 Are any minimum employment terms and conditions set down by law that employers have to observe?

Yes. Minimum terms and conditions of employment are contained in the various employment standards and legislation of each Canadian province and in the Canada Labour Code for federally regulated businesses. Thus, for example, there are minimum standards established for wages, vacation pay, overtime pay, statutory holidays, hours of work, leaves of absence, and termination of employment.

1.6 To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level?

The freedom to associate and to bargain collectively is a fundamental freedom under Canadian law. Approximately 30 per cent of the workforce, including public sector employees, have their terms and conditions of employment agreed through collective bargaining. This rate rises to close to 40 per cent in Québec and British Columbia. Collective bargaining can take place either at company level or, in certain circumstances (e.g., the construction industry), at industry level.

2 Employee Representation and Industrial Relations

2.1 What are the rules relating to trade union recognition?

In all jurisdictions, employees have the right and freedom to join or form a union of their choice. In order to be recognised or certified as the bargaining agent for a group of employees, a union must secure the support of a majority of the workers who form the bargaining unit. A "majority" is defined as 50 per cent of the workers plus one. Typically, employees will be approached to sign union membership cards; these cards will be compiled. Once a sufficient number of cards have been obtained, a petition will be filed before the appropriate labour board who will certify the union as bargaining agent for the group of employees targeted. In certain circumstances, if the union obtains support of less than 50 per cent plus one but more than 35 per cent (or 40 per cent in certain provinces), a vote can be ordered by the labour board to determine whether the union will be recognised. If the employer does not agree with the bargaining unit as defined by the union, there is a procedure for contestation, and a hearing before the labour board will be held prior to certifying the union until such time as the bargaining unit has been properly defined.

2.2 What rights do trade unions have?

Canadians believe that it is in the public interest to resolve industrial disputes quickly and efficiently. The primary rights of a trade union are firstly to bargain collectively with an employer. Certification gives a union the exclusive authority to bargain collectively with an employer on behalf of all employees in the bargaining unit. Both parties have the legal duty to bargain in good faith. In the event that the parties are unable to reach an agreement, the employees, through their union, have the right to strike, and employers have the right to lock out employees. In Québec, there exists legislation which expressly prohibits the use of replacement workers during a strike or lockout. A union also has the right to have disputes or grievances arising during the life of a collective agreement decided by arbitration. All disputes between a union and an employer concerning the interpretation, application, administration or alleged violation of a collective agreement must be settled by arbitration. Also, the union can, at any time during the collective bargaining process, request the intervention of a Government-appointed conciliator to facilitate the bargaining process. In the case of a first collective agreement, either party can also ask for binding arbitration if the collective bargaining or conciliation process is unsuccessful.

2.3 Are there any rules governing a trade union's right to take industrial action?

Yes. A union's right to take industrial actions such as a strike or picketing is regulated by law; strikes can be conducted lawfully once majority support by the employees in the bargaining unit has been secured. Picketing actions (including secondary picketing) are permitted as a form of free expression but must be conducted in such a way as not to interfere with the flow of business on the employer's premises.

2.4 Are employers required to set up works councils? If so, what are the main rights and responsibilities of such bodies? How are works council representatives chosen/appointed?

No. There are no requirements to set up works councils in Canada. Unions are the form through which employee representation occurs.

2.5 In what circumstances will a works council have codetermination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals?

This is not applicable. (See question 2.4, above.)

2.6 How do the rights of trade unions and works councils interact?

This is not applicable. (See question 2.4, above.)

2.7 Are employees entitled to representation at board level?

No, they are not.

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