Canada: Bill C-86: Major Changes Coming To A Federal Workplace Near You

For Canadian workplaces, 2018 has been a year of transition and change. The year saw the implementation of many key labour and employment law changes nationwide, including but not limited to, Bill 148 in Ontario, Bill 17 in Alberta, and Bill 176 in Quebec. Moreover, now with only a couple of months left in 2018, however, the new Ontario Government has tabled Bill 47, which if passed, will reverse many of the changes made by Bill 148. In addition, the legalization of cannabis promises to have significant implications for employers and workplaces nationwide.

With all of the changes, it was only a matter of time before the Federal Government joined in the action. On October 29, 2018, the Federal Government tabled Bill C-86, the Budget Implementation Act, 2018, No. 2. On November 6, 2018, Bill C-86 went to Second Reading and Referral to Committee in the House of Commons. In addition to proposing pay equity legislation, Bill C-86, as expected, promises to significantly impact federally regulated employers as it provides for expansive reform to the Canada Labour Code (the "Code").

Some of the proposed changes in Bill C-86 as currently written, include the following:

  • Introduction of Pay Equity Legislation: Bill C-86 would create a federal Pay Equity Act that would require employers to establish pay equity plans within 3 years of becoming subject to the Act. In addition, unionized and large employers would be required to establish a pay equity committee. A Pay Equity Commissioner would be established in order to administer and enforce the Act. To promote compliance, an administrative monetary penalty system would be introduced.
  • Equal Pay for Equal Work: Bill C-86 would prohibit an employer from paying employees differently for performing the same work on the basis of "employment status." Temporary help agencies would also be barred from paying employees less than what the client pays its own employees performing the same job.

For employers and temporary help agencies, these provisions would be subject to certain exceptions that include, merit, seniority, quantity or quality of each employee's production, or other criterion prescribed by regulation.

  • Temporary Help Agencies: would be prohibited from charging fees for placements and from restricting employees from establishing employment relationships with clients.
  • Significant Scheduling Overhaul: employers would be required to provide employees with a minimum of 96 hours' written notice before implementation of a schedule. Employees would be able to refuse a shift where 96 hours' notice is not provided. The provision would not apply in the case of emergency, where a collective agreement provides an alternate time frame, or where the changes in schedule was requested by the employee under the new Flexible Work Arrangements pursuant to Bill C-63.

    • Minimum Rest Periods of at least 8 hours between shifts. This would not apply in the case of emergency.
    • 30-Minute Unpaid Meal Breaks would be required during every period of 5 consecutive hours of work.
    • Medical and Nursing Breaks would require employers to provide employees with any unpaid breaks that are necessary for medical reasons, or that are necessary for employees who are nursing or expressing breast milk.
  • Leaves of Absence: Bill C-86 would remove the existing service requirement that an employee complete 6 months of continuous service before being entitled to various leaves. The following leaves would also be added or amended:

    • Personal Leave of 5 days (the first 3 paid after 3 months of continuous employment). An employee may use these days in every calendar year for personal illness, responsibilities related to health care or care of family members as well as any urgent matters concerning themselves or family members, education-related responsibilities of family members under 18, attending their citizenship ceremony, and any other reason prescribed by regulation.
    • Leave for Victims of Family Violence, which was enacted by Bill C-63 will remain a 10 day entitlement. Bill C-86 would make the first 5 days of such leave paid for employees who have completed 3 months of continuous employment.
    • Medical Leave, while replacing "Sick Leave", will remain a 17-week entitlement. Along with personal illness or injury, the proposed Medical Leave would also cover organ or tissue donation, or medical appointments during working hours.
    • Leave for Court or Jury Duty would enable employees to take a leave of absence to participate in judicial proceedings.

In addition, the medical documentation that could be submitted to substantiate a leave would be broadened to the category of "health care practitioners."

  • Vacation and Holiday Pay: would be amended and increased for longer service. Bill C-86 would also remove the current exclusion for general holiday pay for holidays that occur within an employee's first 30 days of employment with an employer.
  • Termination of Employment: the Code's current 2-week notice provision would be replaced with a graduated notice regime more similar to those under provincial employment standards legislation. "Redundant employees" terminated as part of a group termination would be entitled to individual notice of at least 8 weeks.

Bill C-86 would further amend and expand upon changes to the adjudication of unjust dismissal complaints first implemented by Bill C-44, which has yet to come into force.

We will continue to update you as Bill C-86 proceeds through the legislative process. In the interim, if you have any questions regarding the impact of Bill C-86 on your workplace, please do not hesitate to contact one of the members of our Labour & Employment group.

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