Canada: Hot Off The Parliamentary Press: Bill C-86 And Federal Employment Standards

Last Updated: November 5 2018
Article by Lori Sterling

Lori Sterling most recently served as Canada’s Deputy Minister of Labour and Associate Deputy Minister, Employment, Skills Development Canada. In that capacity, she was responsible for drafting the following labour amendments in Bill C-86.

Bill C-86, introduced in Parliament late yesterday, implements the Federal Budget announced last winter. This Bill is over 800 pages long and includes significant employment standards reforms in the federal sector. That sector includes airlines, ports, railways and telecommunication companies.

The employment standards reforms run over 120 pages in this Bill, and stand in stark contrast to the approach recently taken by the new government in Ontario. The reforms will, if passed, make federal employment standards the most comprehensive and highest in the country. It is noteworthy that there is no change to the federal approach to minimum wages. However, implementation of the reforms will likely result in costs to employers.

Here are some highlights:

A. Changes Related to Basic Standards

  • Vacation entitlement is increased to 3 weeks after 5 years and 4 weeks after 10 years.
  • Significantly, there is a new personal leave of up to 5 days for illness, injury, family responsibility, urgent matters, citizenship and “education of any family member under 18.” After 3 months of work, 3 of those days are paid.
  • There is a new unpaid break of 30 minutes after 5 consecutive hours between shifts and a paid rest after 8 consecutive hours of work between shifts. A provision for exceptions related to the nature of the business or an emergency is included. There is also a new entitlement to unpaid breaks beyond this for medical reasons or nursing.
  • There is a new entitlement to unpaid leave for pregnant or nursing women where a health care practitioner has determined the employee cannot perform duties of the job. Equally, the Bill proposes amendments to the Labour Code so that jobs are protected while on maternity and parental leave.
  • Unpaid jury leave is required to be given by employers for employees who are jurors, witnesses or are required to participate in jury selection.
  • Employees will be entitled to notice of their work schedule of at least 96 hours and any changes require 24 hours notice. Employees will also have a limited right to refuse work when the 96-hours rule is not met. Exemptions will be provided for an emergency or certain sectors. For those covered by a collective agreement with a different regime, the collective agreement prevails.
  • Reasonable work-related expenses will be eligible for reimbursement but are subject to collective agreement provisions.

B. Changes to Deal with Non-standard Work Such as Part time and Agency Work

  • Bill C-86 provides for equal pay for equal work between part-time and full-time employees under certain circumstances.
  • There is an onus on employers to prove they have not misclassified employees as independent contractors.
  • Employers are required to provide a statement to employees of their status and terms of employment.
  • Temporary employees must be converted to permanent status after certain requirements are met and temporary employees have a right to be notified of opportunities for employment.
  • There are new requirements and liabilities for temporary help agencies and employers who use temporary help agencies. The changes are aimed at assisting the employee of the temporary help agency and the employer who wishes to bring the temporary worker in as a permanent employee.

C. End of Employment

  • There is a new termination of employment model that mirrors most other provinces where employers have to provide notice on a sliding scale based on years of continuous service. The range runs from 2 to 8 weeks of notice.
  • For the first time, employees will also have to provide notice of termination.
  • The existing group termination provisions under the Code are abolished to allow for more employer flexibility. A graduated system of notice or pay in lieu of notice is provided that is in line with most other provinces.
  • Where there is contract retendering and the employee moves from the company that loses the contract to the winning employer, then certain employment standards entitlement will assume continuous employment.
  • The federal government has increased the maximum payment it makes under the wage earner protection program. Employees who are unpaid as a result of a company bankruptcy will be entitled to up to 6 weeks of earnings net of unemployment insurance payments. As well, there are new and complicated provisions enabling wages to be paid in limited circumstances during the creditor protection period but before bankruptcy.

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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