Canada: Alberta Government Introduces Changes To Employment Standards And Labour Relations Legislation

This afternoon the Alberta government introduced amendments to the Employment Standards Code and the Labour Relations Code. These amendments are expected to pass in the next week or so before the Legislature recesses for the summer. We don't expect that there will be a lot of changes, if any, during the passage of the amendments in the Legislature.

We were present at the lock-down briefing where a summary of the changes was provided. Once we review the detailed Bill, we might notice refinements, limitations, omissions, misunderstandings of the briefing, etc. and in that event we will provide a supplementary analysis. This should therefore be seen simply as a preliminary heads-up about what is coming.

Employment Standards Code Changes

There will be a number of changes coming into force on January 1st which will impact all Alberta employers governed by the Alberta legislation:

Unpaid Leaves of Absence

A number of unpaid leaves will be introduced to broadly align with Employment Insurance coverage provisions. Employees will have to be employed for only 90 days in order to be eligible for them.

  • Compassionate Care leave
    • Will expand from 8 weeks to 27 weeks.
    • Will be available to more than the primary care giver.
    • The period of notice of return to work will be reduced from 2 weeks to 48 hours.
  • Maternity/paternity leave
    • Eligibility will expand from 15 to 16 weeks.
  • Parental leave
    • Eligibility will expand from 37 weeks to 52 weeks.
  • Long term illness/disability leave
    • Eligibility for up to 16 weeks.
    • Medical certificate and reasonable notice required.
  • Death or disappearance of a child leave
    • Eligibility for up to 52 weeks if child disappeared due to crime.
    • Eligibility for up to 104 weeks if child died as a result of a crime.
  • Critical illness of a child leave
    • Eligibility for up to 36 weeks leave.

A number of other unpaid leaves of absence will be mandated:

  • Personal and family responsibility leave: up to 5 days/year
  • Bereavement leave: up to 3 days/year
  • Domestic violence leave: up to 10 days/year
  • Citizenship ceremony leave: ½ day to attend ceremony.

Youth Employment

Significant changes will be coming on the topic of youth employment after further consultations with the public.

  • The minimum working age will increase from 12 to 13 unless a permit is obtained and the activity is an artistic endeavor.
  • 13,14 and 15 year olds will only be allowed to work in "light work". That term will be defined by regulation after consultations with the public.
  • 16 and 17 year old cannot be employed in any hazardous activity without a permit. "hazardous activity" will also be defined by future regulations.

Hours of Work

Hours of work provisions will be changed to significantly restrict management's flexibility:

  • 30 minute rest periods will be mandated for every 5 hours. There are currently a number of exceptions which will apparently be removed.
  • Compressed work weeks will require collective agreement or, when there is no collective agreement, majority consent. They currently do not.
  • It will be possible for overtime agreements to allow for the time off in the next 6 months, not just 3 as it is now. However, employers will have to allow 1 ½ hours off for each hour of overtime worked. That will significantly curtail the practice of some workers who want to work extra one day or week to get time off when they want it later. Employers will be far more reluctant to allow that when the cost is 1 ½ not one hour for one hour.

Layoffs/Termination of Employment

  • Currently, termination notice is not required if a layoff is only 60 days. This 60 days will be confined in future although the extent was not made clear.
  • The legislation will clarify the rights of the employer once an employee gives notice of resignation.

Vacations

It appears that there will be a change in what the vacation pay will be based on i.e. more than the basic wage.

  • Employees will be entitled to 4% of total wages and two weeks for service up to 5 years.
  • Employees will be entitled to 6% of total wages and 3 weeks' vacation after 5 years of service.

Deductions From Wages

  • In the briefing, the department said that the new legislation would clarify what can be deducted without express written authorization. Currently, not even errors in pay can be unilaterally corrected by taking away from an employee's earnings.

Statutory Holiday Pay

  • You will no longer have to be employed for one year before you are eligible for statutory holidays.
  • You will be entitled to statutory holiday pay even though it is not a regular work day for you. For example, if a statutory holiday is on a Monday and the employee only works Tuesdays to Thursday, currently he is not legally entitled to statutory holiday pay.

Permits

  • All current permits will remain in force but the department wants to move to having more covered by regulations which makes sense from a transparency and consistency perspective.

Enforcement

  • The department says that the new legislation will bring in an administrative penalty system to punish non-compliant employers.

Employment Standards Appeal

  • Appeals are currently heard by Umpires who are Provincial Court judges. The legislation will apparently allow for the process of moving these appeals so that they will be heard by the Labour Relations Board.

Farm and Ranch Workers

Farm and ranch workers are currently exempt from the Code. They will not be under the new legislation:

  • Family members will be exempt but others will be covered.
  • Farm and ranch workers will be exempt from hours of work and overtime.
  • Farm and ranch workers will be entitled to either straight time pay or a day off in lieu of a holiday.

Labour Relations Code ("LR Code") Changes

There will be various transitional provisions on changes to the LR Code. They were not specified in the briefing although they could be very important.

The following changes are the highlights:

Certifications

  • Secret ballot votes will no longer be mandated if the union has 65% support as shown by proof of support in the prior 6 months or membership in good standing.
  • Secret ballot votes will be mandated if the union's support is between 40 and 65% and in the discretion of the Labour Relations Board (LRB) in other cases.
  • If the union support is shown by a petition then a vote is mandated.
  • New rules will impose strict time limits to ensure certifications are dealt with in 20 days from start to finish (unless a mail-in ballot in which case it will be 25 days).
  • Similar rules will apply to revocation applications except they will have to be by petition so that a vote will be mandated in every case.

Farm and Ranch Workers

  • They will be covered by the LR Code so that workers can choose unionization.
  • Family members will be exempt from any involvement.
  • A public emergency sufficient to stop a strike will include harm to livestock or irreversible damage to crops.

Dependent Contractors

  • Confirming what is probably already the current LRB practice, dependent contractors (as opposed to independent contractors) will be covered by the LR Code. The difference between the two categories will be based on economic dependence and workplace control. This designation will supposedly be independent of tax considerations.

Rand Formula

  • Mandatory deduction and remittance of union dues will be required whenever an employer is certified by a trade union. Currently, that is open for negotiation.

LRB Procedures

  • The Board will be directed to give priority in scheduling to job loss cases.
  • The Board will be given broader powers to mandate document production at an early stage of hearings.
  • The Board will be given even broader remedial powers.

Reverse Onus

  • Employers will have the onus to prove their innocence if it is alleged that they disciplined or discharged someone because of union membership or involvement.

Unfair Labour Practice Remedies

  • The LRB will be mandated to do whatever is fair and equitable to remedy a breach (except it will expressly be prohibited from imposing penalties or acting punitively). Remedies will include a power to order arbitration of a dispute.
  • The Board may direct that a union is certified without majority support when, due to employer actions, a fair vote is impossible. This has not been an LRB remedy since 1988. The wording of the provision will be important.

Remote Site Access

  • The LRB will be able to require that a union be given access to private property to organize or to conduct union business.
  • A union who represents employees will be given reasonable access to employer premises and accommodation for carrying out their duties.

First Contract Arbitration

  • The post-certification freeze on altering terms and conditions of employment will expand from 60 to 120 days.
  • Unions can apply for LRB help if they cannot get an agreement in 90 days. The LRB will then have broad powers to mediate, oversee bargaining, force the tabling of last offers, order votes, etc.
  • The LRB will be able to order arbitration of a first collective agreement. The details of when they can do that will be important.

LRB Power to Marshal Disputes

  • Details are unclear but the LRB will be given the power to marshal disputes so that unions and employers don't have to fight disputes in 2, 3 and 4 different forums. This could be a positive development for employers.

Appeals of Labour Arbitration Decisions

  • Instead of judicial review applications, appeals of arbitration decisions will go to the LRB with appeals from there to the Court of Appeal (with leave to appeal being required).

Arbitrator Powers

  • Arbitrators will be given the power to extend time limits. That is troubling because employers have often fought very hard to get mandatory time limits and unions have also benefited from being able to reduce the number of duty of fair representation complaints against them because of time limit issues.
  • Arbitrators will be given the express power to grant interim orders, mediate, expedite.
  • Arbitrators will be given the express power to determine breaches of other labour statutes. Alberta arbitrators have sometimes done that already even without that express power.

Essential Services

The legislation will be expanded to cover:

  • Continuing care sector
  • Health care labs
  • Blood supply services

This will be a very significant change for some of these employers.

Secondary Picketing

  • Secondary picketing will be expressly authorized. Unions will be able to picket secondary sites and allies of the employer subject to the ability of the LRB to regulate it. This is an expansion on the current situation which was not that expansive.

Duty of Fair Representation Complaints

  • Unions will be required to have appeal procedures (either internal or external). The theory is that that will reduce the number of duty of fair representation complaints which are now clogging the LRB.

Market Enhancement Recovery Fund Prohibitions and Salting Rules

  • Will be removed.

These two areas were covered quite clumsily in changes in the legislation some years ago but their removal will give the green light to both salting and "merf"ing.

Transparency

  • Both parties will be more clearly required to file their collective agreements with the Ministry.
  • Window periods for raiding by other unions will be reported in some fashion. This is supposedly to help unions raid each other which is a curious thing to promote.

International Unions

  • International unions and sister unions of unions caught by construction registration will be prohibited from working around registration collective agreements. This is to solve a perceived problem with the actions of one of the international construction unions who tried to enter into a direct deal separate from its Alberta Local.

Suspension of Union Dues

  • The powerful LRB remedy of being able to authorize the suspension of dues deduction and remittances in illegal strike situations will be removed. It was used at least once at considerable cost to one of Alberta's unions as a sanction for illegal strike activity.

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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