Canada: Government Announces Labour And Employment Law Review

As we previously anticipated, yesterday the government announced a process to review changes to the Labour Relations Code and the Employment Standards Code.

Areas of interest have been broadly defined, and further detail is required to assess where this may lead to, but there is cause for concern to employers.

Here are the items that have been assigned to labour arbitrator Andy Sims to review regarding the Labour Relations Code:

  • "Whether to mandate a Rand formula in collective agreements." [This is the requirement that dues must be deducted from all employees under a collective agreement, whether they are union members or not].
  • "Assessing the processes used to let employees exercise their constitutional right to choose, change or cancel union representation in a timely and effective way." [This could include many issues, such as the concern of card-based certification without a secret ballot vote].
  • "Whether it is appropriate to provide for the type of reverse onus provisions used elsewhere in respect to certain alleged unfair labour practices." [This would be a significant change and is contrary to the notion of "innocent until proven guilty"].
  • "Reviewing current definitions of 'employer' and 'employee' to ensure they are consistent with today's workplaces, including the manner in which bargaining rights may be maintained, adjusted, or changed as workplaces and ownership change." [This will likely consider expanding who is covered by the Labour Relations Code and could include provisions such as successorship and common employer declarations].
  • The options available for dispute resolution in intractable disputes. This may include situations that involve unresolved first contracts, proven unfair labour practices, or the failure to maintain essential services or public emergency." [This could also include many issues, such as first contract arbitration and mandatory arbitration after a period of time in a labour dispute, items some unions have requested].
  • "Whether to broaden the Alberta Labour Relations Board's mandate to enable adjudication of a wider range of workplace disputes."
  • "Improving the Alberta Labour Relations Board's powers, procedures and remedial options with a view to more timely dispute resolution, flexibility in the use of mediation, and available remedies reflective of labour relations realities." [This will likely consider expanding the powers of the Labour Board and addressing stronger remedies, such as automatic certification].
  • "Improved powers and procedures in grievance arbitration, including the current judicial review processes and the option of initial Labour Board oversight." [This could include expedited arbitration].
  • "Improved mechanisms for ensuring the fair representation of employees in matters arising out of collective agreements."
  • "Examining areas of the Code where, due to the wording of legislation, or developed practice, Alberta's labour law processes depart, without benefit, from the Canadian mainstream." [These considerations are very much in the eye of the beholder].

Of interest will be how broadly these issues are defined by the government.

In respect to the Employment Standards Code, the government is considering the following:

  • Reviewing maternity leave, parental leave, and compassionate care leave with an apparent intent to expand these entitlements (e.g., expanding the duration; reducing the qualifying period).
  • Introducing leaves for other family responsibilities.
  • Introducing sick leave entitlement.
  • Introducing leave for the care of critically ill children.
  • Increasing the cost to employers of overtime banking arrangements.
  • Changing the rules for overtime entitlement (e.g., when must overtime be paid).
  • Increasing the requirements for work breaks.
  • Making it easier to qualify for general holidays.
  • Increasing the ability to make deductions from employee pay for defined reasons.
  • Changing regulations on what jobs youth can perform.
  • Expanding the notice requirements in group terminations to include unions and employees and to exceed the current requirement of 4 weeks.
  • Expanding enforcement and punishment provisions in the legislation.

These items, if implemented, would increase red tape, reduce flexibility, and add costs to employers and ultimately consumers.

It will be important to ask whether any of the proposed changes are necessary.

The public is able to provide their views and input on these issues until April 18, 2017. This will be done electronically in respect to the Employment Standards Code and through consultations with stakeholders in respect to the Labour Relations Code.

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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13 Sep 2017, Webinar, Calgary, Canada

Accommodation in the workplace is not a new concept. However, the needs of employees that employers are being asked to accommodate are continuing to evolve and change. In addition, the expansion of human rights legislation to add additional types of expression and personal characteristics which will require accommodation is on the horizon.

 
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