Canada: Bill 17: The Fair And Family-Friendly Workplaces Act Overview

Last Updated: June 5 2017
Article by Barbara B. Johnston QC and Adrian C. Elmslie

Bill 17: The Fair and Family-friendly Workplaces Act was tabled in the Legislature on Wednesday, May 24, 2017. The Bill includes broad and sweeping changes to the Employment Standards Code and the Alberta Labour Relations Code. Below are highlights of some of the proposed changes.

Employment Standards Code

  • Job protected leave
    • The eligibility period for all job-protected leaves is shortened to 90 days of employment, instead of 52 weeks
    • Introduction of many new leaves, including:
      • Long-term illness and injury leave of a maximum of 16 weeks, requires a medical certificate
      • Personal and family responsibility leave for up to five days
      • Bereavement leave for three days
      • Domestic violence leave for 10 days
      • Citizenship ceremony leave for a half day
      • Critical illness of a child leave for up to 36 weeks
      • Death or disappearance of a child, for up to 52 weeks when a child disappeared as a result of a crime, or up to 104 weeks when a child died as a result of a crime
    • The duration of other leaves currently in the Code have been increased
      • Compassionate care leave
        • Increased from eight weeks to 27 weeks
        • Includes care by non-primary caregiver
      • Maternal and parental leave
        • Maternal leave increased from 15 weeks to 16 weeks
        • Parental leave remains at 37 weeks, but there is an ability to amend parental leave based on potential changes to federal legislation
      • Employees may return to work after many of these leaves upon providing 48 hours' written notice (e.g. compassionate care, death or disappearance of child, critical illness of child, long-term illness and injury)
  • Standards
    • Employees must be provided a 30-minute rest period for every five hours or more worked, within every five consecutive hours of work
    • Compressed work weeks (CWW) will require a written averaging agreement, which will average the hours over a period between 1 to 12 weeks. Existing CWW arrangements remain valid until the earlier of one year after the new section comes into force, or the termination of the existing CWW arrangement. Existing CWW arrangements in a collective agreement remain in effect until a subsequent collective agreement is entered into.
    • Overtime can be banked for 6 months, at a rate of 1.5 times the employee's wage rate
    • Termination and Layoff
      • Employees who are laid off for more than 60 days within a 120-day period are deemed to have been terminated unless wages or benefits payments are paid by the employer
    • Prohibition on certain deductions from wages
    • General holiday pay
      • The one-year eligibility requirement has been removed
      • "Regular work day" distinction has been removed
      • Holiday pay is not payable where the employee is absent without consent on the last regular work day
    • The minimum wage exemption for persons with disabilities has been removed
  • Youth employment
    • The minimum age of employment has been increased from 12 to 13 years
    • Persons between the ages of 13 and 15 may perform work in accordance with the light work list
      • The light work list will be updated, with an expected timeline of fall 2018
    • Persons between the ages of 16 and 17 can perform work that is not hazardous without a permit
    • Enforcement provisions
      • New administrative penalty system akin to the occupational health and system regime
      • A notice of administrative penalty may be served for up to 2 years after the alleged contravention or non-compliance occurs
      • The permit system is abolished and replaced with regulations (however, existing permits will continue to remain in force)
      • Officers now have the authority to order employers to conduct an audit of compliance
      • Possible shift to Alberta Labour Relations Board ("Board") for appeals from officer

The proposed changes to the Employment Standards Code will come into force on January 1, 2018. The provisions regarding youth employment will come into force upon Proclamation, with the light work list expected to be updated by the fall of 2018.

Alberta Labour Relations Code

  • Certification
    • Secret ballot votes will no longer be required if the union establishes support of 65 percent or more
    • Secret ballot vote will be required where union support is between 40 percent and 65 percent or where evidence of support is through a petition
    • Board has the ability to require a second ballot for any application where it believes it to be appropriate, such as where there is evidence of conflicting support
    • The certification process will be subject to short regulated timelines for certification, subject only to the Board's discretion.
  • Dependant contractors
    • A new definition has been introduced for dependant contractors (as opposed to independent contractors) who are now expressly covered by the Labour Relations Code
    • Factors considered include: economic dependence, workplace control and resemblance to employees
  • Rand formula
    • Statutory obligation to include mandatory union dues deductions and remittances by employees in all collective agreements
  • Board procedures
    • Statutory priority is given to job loss cases
    • Provisions to provide timely disclosure of documents
    • Protection of certain sensitive commercial or labour relations information received
    • Broader remedial powers
  • Reverse onus clause
    • The onus is now on the employer to show just cause in unfair labour practice complaints involving discipline, dismissal, discrimination or other alleged intimidation of an employee
  • Remedial power for unfair practices
    • Board is to consider what is fair and equitable
    • A finding of unfair practices could result in arbitration
    • The Board may certify or decertify a union without any vote or majority support among employees where either an employer or union has engaged in unfair practices
  • Remote site access
    • The Board may order union representatives to have access to employer property to organize the employer's workforce or for representational purposes
  • First contract arbitration
    • Wage freeze provisions have been changed from 60 days to 120 days
    • Parties can apply to the Board for assistance after 90 days of unsuccessful bargaining
      • Automatic freeze extension
      • Enhanced mediation
    • Board may order first contract arbitration
      • Board is gatekeeper
      • Expedited arbitration
      • The arbitrator will be appointed by the Board with consultation from the parties
  • Board marshalling of disputes
    • The Board will now assist the Human Rights Commission in deciding whether to accept or defer applications
    • This is intended to avoid tactical overlapping litigation when one forum is best equipped to make findings
  • Arbitration appeals
    • Board has ability to review arbitration decisions in first instance
    • Appeals of Board decisions may then proceed to the Court of Appeal
  • Powers of arbitrators expanded to include:
    • Extend time limits in collective agreements
    • Make interim orders
    • Mediate
    • Expedite hearings
  • Essential services definition expanded to include health care laboratories, blood supply services, and all continuing care facilities
  • Secondary picketing
    • Secondary picketing will now be expressly allowed and regulated by the Board
    • Unions are now permitted to picket employer allies and secondary worksites
  • Duty of fair representation
    • Encourage union to have fair appeal procedures (internal or external)
  • Transparency
    • Contract end dates included in mediation services window periods
    • Board and arbitrators to order pre-hearing production
    • Allow preliminary motions to dismiss applications to award disclosure of relevant documents where appropriate
  • Suspension of dues
    • The current provision of the Code that suspends the collection and remittance of union dues during an illegal strike has been removed

Many of the proposed changes to the Alberta Labour Relations Code will come into force upon Royal Assent of the Bill. Others will be phased in over time, such as the hybrid certification process, the reverse onus and the process for review of arbitral decisions, all of which come into force on September 1, 2017.

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