Canada: Amendments To Alberta Labour Relations Code And Employment Standards Code

Last week, the Alberta Government introduced a series of amendments to both the Labour Relations Code and the Employment Standards Code. This followed a brief period of input from stakeholders. It is expected that the government will move quickly to pass the changes in advance of the Legislature's summer's break.

The changes to the Labour Relations Code are purported to modernize Alberta's legislation and align it with current practices across Canada. The most significant changes to the Labour Relations Code for employers include the following:

Certification Applications

  • Secret ballot votes will no longer be required to certify a new union if at least 65% of the employees show their support by signing membership cards in favour of the union.
  • Secret ballot votes will be required 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 would be required.
  • Strict time limits will be included to ensure certifications are dealt with in 20 days from start to finish (25 days in the case of a mail-in ballot).

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 an agreement is not reached in 90 days. The LRB will then have broad powers to mediate, oversee bargaining, force the tabling of last offers, order votes, etc.

LRB Procedures

  • The LRB will be given increased powers to require document production at an early stage of disputes.
  • The LRB will be given broader remedial powers.

Reverse Onus

  • Currently, in cases where it is alleged that discipline or dismissal resulted from union membership or involvement, employees have the burden of proving the allegations. Once the changes are passed, employers will be required to prove they did not discharge someone because of union membership or involvement.

Dependent Contractors

  • The definition of "employee" would be changed to include dependent contractors who work exclusively for one employer. This change would purportedly allow contractors to unionize and bargain collectively.

The most significant changes to the Employment Standards Code would likely come into effect January 1, 2018 and would include the following:

Unpaid Leaves of Absence

A number of unpaid leaves will be introduced and some existing leaves will be expanded. Employees will have to be employed for only 90 days in order to be eligible for these leaves rather than 1 year. The changes to leaves include:

  • Compassionate Care leave
    • Will expand from 8 weeks to 27 weeks to align with EI benefits.
    • Will be available to more than the primary care giver.
    • The period of notice of return to work will be reduced from the current 2 weeks to 48 hours.
  • Maternity/paternity leave
    • Eligibility will expand from 15 to 16 weeks.
  • Parental leave
    • Eligibility will expand from 37 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 introduced:

  • 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

Hours of Work and Compressed Work Weeks

Hours of work provisions will be changed and will have an impact on management's flexibility:

  • 30 minute rest periods will be required for every 5 hours of work.
  • Compressed work weeks will require collective agreement or, when there is no collective agreement, majority consent.
  • Overtime agreements will allow for time to be banked for 6 months, rather than 3 months. The overtime banking will be calculated at 1.5 times for all hours worked rather than the current regime of hour for hour.

Vacations and Vacation Pay

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

  • Employees will be entitled to 4% of total wages and 2 weeks' vacation 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

  • The new legislation is intended to 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

  • Employees will no longer need to be employed for one year before becoming eligible for statutory holidays.
  • Employees will be entitled to statutory holiday pay even though it is not a regular work day. For example, if a statutory holiday is on a Monday and the employee only works Tuesdays to Thursdays, that employee is currently not legally entitled to statutory holiday pay.

Layoffs and Terminations

  • Breaks in service of less than 90 days will be deemed to be continuous employment in order to calculate service for the purposes of termination.
  • In circumstances of group terminations, the requirements for notice to employees, unions, and the Minister of Labour would be increased to between 8 and 16 weeks, depending on the number of employees.

Enforcement

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

There are a number of other proposed amendments which include non-family employees on ranches and farms and changes to recordkeeping requirements. It is anticipated that there will be further changes to the Employment Standards Regulations. We will continue to monitor any changes in the legislation and will provide a further update when the bill is passed.

With the changes expected to be in effect for January 1 of 2018, employers will have a period of approximately 6 months to study the changes and assess their impact on their organizations.

We will continue to provide further updates to educate and assist employers on these changes.

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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