Canada: Bill 17 – Proposed Changes To Alberta's Employment Standards Code

On May 24, 2017, the Government of Alberta tendered and passed first reading of Bill 17: Fair and Family-friendly Workplaces Act (the "Bill"). The Bill proposes a number of significant amendments to Alberta's Employment Standards Code and Labour Relations Code.

This blog post provides a summary of the key changes to Alberta's Employment Standards Code and is not a comprehensive summary of the Bill. Should the Bill pass in its current form, we anticipate the majority of changes taking effect January 1, 2018.

If passed, these amendments will have significant impacts on employers' policies, practices and businesses as a whole. They create expanded protections for leaves (although unpaid), which impacts staffing; impose administrative fines for non-compliance; give greater entitlements respecting vacation, holiday and overtime; and so forth.

Amendments to the Employment Standards Code

Unpaid Leaves of Absence

The qualifying period for maternity, parental and compassionate care leave will be reduced from 52 consecutive weeks of employment to 90 days.

The period of maternity leave will be extended from 15 to 16 weeks.

Compassionate care leave will be extended from 8 weeks to up to 27 weeks, to be taken in periods of no less than 1 week in duration. Employees will no longer be required to be the primary caregiver of the seriously ill family member and will need to provide only 48 hours' notice of their return.

Non-birth parents and adoptive parents taking parental leave must complete the leave within 53 weeks following the child's birth or adoption as opposed to 52 weeks.

A number of additional unpaid leaves of absences will also be introduced including:

– Death or disappearance of child leave, providing for up to:

52 weeks of unpaid leave for qualifying employees who are the parent of a child who has disappeared and it is probable that the disappearance is the result of crime; or

104 weeks of unpaid leave for qualifying employees who are the parent of a child who has died and it is probable that the death is the result of crime;

– Critical illness of child leave, providing for up to 36 weeks of unpaid leave for the purpose of providing care or support to a critically ill child;

– Long-term illness and injury leave, providing for up to 16 weeks of unpaid leave in a calendar year due to illness, injury or quarantine;

– Domestic violence leave, providing for up to 10 days of unpaid leave in a calendar year to seek medical attention, obtain services from a victim services organization, obtain psychological or professional counselling, relocate temporarily or permanently, seek legal or law enforcement assistance and any other purpose provided for in the regulations;

– Personal and family responsibility leave, providing for up to 5 days of unpaid leave in a calendar year for the health of the employee or for the employee to meet his or her family responsibilities in relation to a family member;

– Bereavement leave, providing for up to 3 days of unpaid leave in a calendar year due to the death of a family member; and

– Leave for citizenship ceremony, providing for up to a half-day of unpaid leave to attend a citizenship ceremony to receive a certificate of citizenship.

Administrative Penalties

Similar to Alberta's Occupational Health and Safety regime, administrative penalties will be introduced requiring the employer to pay an administrative penalty for a contravention or failure to comply with the Employment Standards Code or regulations.

Administrative penalties will not exceed $10,000 for each contravention or failure to comply or for each day or part of a day on which the contravention or failure to comply occurs or continues.

Compressed Work Week

Compressed work weeks will be replaced by hours of work averaging agreements. An employee or group of employees may enter into an hours of work averaging agreement that provides that the employer will average an employee's hours of work over a period of 1 to 12 weeks for the purpose of determining the employee's entitlement to overtime pay or time off with pay. Scheduled hours of work must still remain at or below 12 daily and an average of 44 weekly. Averaging agreements will generally need to be renewed every 2 years.

Overtime Agreements

Overtime agreements will require employers to provide 1.5 hours time off with pay for each hour of overtime banked (presently 1 hour for 1 hour basis). Time off with pay must be provided, taken and paid to employees within 6 months (presently 3 months) of the end of the pay period.

Holiday Pay

The requirement that an employee work for 30 work days or more to be eligible for holiday pay will be removed. Further, employees will be entitled to holiday pay even when the holiday falls on a day they are not normally scheduled to work. Calculating holiday pay will be slightly changed and treatment of outstanding holiday entitlements on termination will be addressed

Vacation

Breaks of employment of less than 90 days will be deemed to be a period of continuous employment for the purpose of calculating minimum vacation entitlements. Employees will also be able to take vacation in half day periods.

Termination of Employment

The probationary period is changed from 3 months to 90 days. Breaks of employment of less than 90 days will be deemed to be a period of continuous employment for the purpose of calculating length of service for the purpose of termination pay or notice. If an employee's wages vary from one pay period to another, termination pay will be calculated by averaging the employee's wages during the previous 13 weeks instead of the previous 3 months.

Employers will be better positioned to pay out employees upon employees providing notice of their intention to resign. Employers will be able to pay out an employee tendering their resignation by providing the employee with wages the employee would have earned if the employee had worked until the earlier of the end of the termination notice period the employee provided or the end of the termination notice period that the employer would have been required to give the employee. Currently, where an employee provides more notice than required and an employer wants to pay out the employee, the employer must provide pay in lieu to the end of the termination notice period that the employer would have been required to give the employee.

Group Terminations

The proposed amendments to the group termination provisions are significant are far more onerous on employers. Employer will need to provide at least 8-16 weeks' notice to the Minister of a group termination, depending on the number of employees being terminated at a single location. Also, employers will need to provide the notice to either the bargaining agent or the employees, as applicable.

Administration of the Code

The Bill proposes significant changes to the administration of the Employment Standards Code including the establishment of an appeal body, the mechanism for issuing variances or exemptions and authority for audits, investigations or inquiries, and the rules relating to complaints and orders.

Layoffs

The seldom used layoff provisions of the Employment Standards Code will generally require employers to provide advance written notice of 1-2 weeks and will codify certain existing requirements, such as including a copy of the applicable provisions of the Employment Standards Code in the notice. Layoffs will generally end after 60 days in any 120 day period rather than after 60 consecutive days.

Employment of Minors

New provisions are proposed regarding the employment of minors. Restrictions will be imposed on employers based on the type of work being performed by the employee and the employee's age with particular emphasis on the health and safety of the employee.

Persons with Disabilities

Division 10 of Part 2: Persons with Disabilities will be repealed. Presently, this Division allows the Director to issue a permit authorizing an employer to pay a prospective employee who has a disability, a wage less than the minimum wage if the employment arrangement is satisfactory for both parties, in the circumstances.

Other

Other proposed amendments include the removal of many of the exceptions for non-family employees on farms and ranches; changes to record keeping requirements; and changes regarding deductions from earnings. We also anticipate many significant amendments to the Employment Standards Regulation to follow shortly.

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