Canada: Forthcoming Amendments To The Canada Labour Code

Last Updated: November 7 2018
Article by Nicole Skuggedal and Jason Harman

Last week we posted, " Changes to Labour Relations Code Proposed in New Report" where we outlined some notable recommendations in the panel's report for amendments to the provincial labour relations code.

This post serves as a reminder to federally-regulated employers of upcoming amendments to the Canada Labour Code ("Code").

These amendments include:

  • providing employees with a right to request flexible work arrangements from their employers;
  • providing employees with additional leaves of absence and altering some existing leaves;
  • modifying provisions related to work schedules, overtime, annual vacation and general holidays in order to provide greater flexibility in work arrangements; and
  • strengthening the existing framework for the prevention of harassment and violence, including sexual harassment and sexual violence, in the work place.

None of the listed amendments have been scheduled, as of November 1, 2018, to come into force.

Flexible Work Arrangements

The flexible work arrangements provisions allow employees with six months of service to request: (i) changes to their work hours; (ii) work schedule; (iii) location of work; and (iv) the terms and conditions that apply to the employee in undertaking their work.

Employers are given the discretion to grant all or part of the request. However, employers may only refuse the request based on any of the following 5 grounds enumerated in the Code:

  • the requested change would result in additional costs that would be a burden on the employer;
  • the requested change would have a detrimental impact on the quality or quantity of work within the employer's industrial establishment, on the ability to meet customer demand or on any other aspect of performance within that industrial establishment;
  • the employer is unable to reorganize work among existing employees or to recruit additional employees in order to manage the requested change;
  • there would be insufficient work available for the employee if the requested change was granted; and
  • any ground prescribed by regulation.

In response to a request for a flexible work arrangement employers must also consider their independent duty to accommodate as part of their obligations under the Canadian Human Rights Act as the prohibited grounds of family status or disability may be engaged by such a request.

Leaves of Absence & Vacation

New Leaves

The Code will be amended to introduce the following three new unpaid leaves for employees who have completed 3 consecutive months of continuous employment (except in the case of the Family Violence Leave which prescribes no minimum threshold of service):

  • Family Responsibility Leave ­– up to 3 days of leave per year to carry out responsibilities related to the health, care or education of any family members under 18 years of age.
  • Traditional Aboriginal Practices Leave ­– up to 5 days leave per year for an employee who is an Aboriginal person to engage in traditional Aboriginal practices including hunting, fishing, harvesting and any practice prescribed by regulation.
  • Family Violence Leave ­­­– up to 10 days leave per year for an employee who is a victim, or a parent of a victim, of family violence.

Employers may request that employees provide documentation supporting the leave within a prescribed period of time.

Bereavement Leave

The length of bereavement leave will be increased to a maximum of 5 days unpaid leave. If the employee has completed 3 consecutive months of continuous employment with the employer, the first three days of bereavement leave will now be paid.

Vacation Leave

Employees are entitled to take their vacation all in one period, or, in multiple periods, if a request is made in writing. Employees are also permitted to interrupt a vacation granted to them in order to take a leave of absence.

Overtime / Notice for Changes to Shifts / Right of Refusal

Overtime Banking

Employees working overtime may now be compensated by receiving time off with pay (rather than merely wages) at the equivalent rate of not less than 1½ hours for each hour of overtime worked. The time banked must be taken within a period of three months following the relevant pay period for unionized employees and twelve months for non-unionized employees or longer with agreement.

Notice for Changes to Shift Leaves

Employers must provide employees with 24-hours' notice of a new or a change to an existing work shift.

Right of Refusal

Employees have a right to refuse to work overtime if they have compelling commitments to fulfill family responsibilities that relate to the:

  • health or care of any of their immediate family members; or
  • the education of any of their family member who are less than 18 years old.

Prior to refusing overtime, employees must take reasonable steps to carry out their responsibilities by other means and can only refuse overtime if despite taking reasonable steps they are still required to carry out a family responsibility during the overtime period.

Employees cannot refuse to work overtime or a shift changed or announced with less than 24-hours' notice where the work is necessary to deal with a situation that the employer could not have reasonably foreseen and would present an imminent or serious: (i) threat to the life, health or safety of any person; (ii) threat of damage to or loss of property; or (iii) threat of serious interference with the ordinary working of the employer's industrial establishment.

Harassment and Violence

The Code will be amended to place a duty on employers to ensure that harassment and violence in the workplace is reported, recorded and investigated.

The Code will incorporate "harassment and violence" as defined terms that refer to:

any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment.

Employers will be required to provide, or to make available in the workplace, copies of the "harassment and violence" part of the Code, as well as the employer's relevant health and safety policies.

Employers will be required to:

  • take prescribed measures to prevent and protect against harassment and violence in the work place, respond to occurrences of harassment and violence in the work place and offer support to employees affected by harassment and violence in the work place;
  • ensure that employees, including those who have supervisory or managerial responsibilities, receive training in the prevention of harassment and violence in the work place and are informed of their rights and obligations under the Code in relation to harassment and violence; and
  • undergo training in the prevention of harassment and violence in the work place.

The Code also contains a provision that extends an employer's obligation to former employees if the occurrence becomes known to the employer within three months after the day on which the former employee ceases to be employed by the employer.

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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Nicole Skuggedal
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