Canada: Are We There Yet? The Roadmap To Canada Labour Code Modernization, From Omnibus To Arrival

The Government of Canada appears to be considering additional changes to the Canada Labour Code ("CLC") as the October 2019 election approaches.

In a new press release, the Government says its work to modernize federal labour laws "isn't done," and announces the appointment of an independent Expert Panel "to study the more complex workplace issues facing Canadian employers and workers."

The Expert Panel will study, consult, and make recommendations to the Minister of Labour on the following workplace issues, which previous consultations identified as areas which could merit further study:

  • Federal minimum wage;
  • Labour standards protections for non-standard workers;
  • The "right to disconnect" outside of work hours;
  • Collective voice for non-unionized workers; and
  • Access and portability of benefits.

The results of the Panel's work will be made public in the summer of 2019, in close proximity to September 1st, when several existing CLC amendments are scheduled to come into force, and October 21st, the date of the upcoming federal election.

It remains to be seen whether any new CLC-amending legislation will emerge from the Panel's study. This question could be answered as soon as March 19th, when the Government will release its final budget before the fall election. Either way, the Panel's work is likely to rubber stamp sweeping CLC changes that have been legislated incrementally since 2017 and which are set to come into force in time for the election campaign.

The Journey So Far

The scenery looks familiar because it is. Federally-regulated employers may recall that the Government has already held extensive consultations on modernizing federal labour standards. From May 2017 to March 2018, the Government consulted with Canadians, unions and labour organizations, employers and employer organizations, academics, and other experts and advocacy groups, "to get their perspectives on what a robust and modern set of federal labour standards should be."1

These earlier consultations produced a report called What we Heard: Modernizing Federal Labour Standards, published by the Government's Labour Program on August 30, 2018. The Report focused on five areas which substantially overlap with the issues now being studied by the Expert Panel: improving access to leaves and annual vacation, further supporting work-life balance, better protecting employees in non-standard employment, updating termination of employment provisions, and good wages and benefits.

While commissioning a new Expert Panel might give the impression that the Government is considering all options before taking comprehensive action on federal labour standards reform, the reality is that the train left the station a long time ago. In fact, the Government's legislative track record to date shows the cart leading the horse on CLC modernization.

Since coming to power in 2015, the Government has used three omnibus budget bills to make significant changes to the Canada Labour Code:

  • Bill C-44, the Budget Implementation Act, 2017, No. 1, which was tabled in Parliament before the launch of CLC modernization consultations, amended CLC provisions concerning job-protected leaves of absence, and compliance and enforcement mechanisms.2
  • Bill C-63, the Budget Implementation Act, 2017, No. 2, amended CLC provisions concerning flexible work arrangements, modified work schedules, job-protected leaves of absence, overtime, annual vacation, general holidays, and compliance and enforcement.3
  • Bill C-86, the Budget Implementation Act, 2018, No. 2, amended CLC provisions concerning vacation, holidays, leaves, scheduling, unjust dismissal, equal pay, temporary help agencies, rest periods, termination notice, and group terminations. It also introduced federal pay equity legislation and six other stand-alone pieces of legislation.4

The Road Ahead

Many of the CLC amendments passed by omnibus legislation during the Government's first term have not come into force immediately upon receiving royal assent. Instead, the Government's labour standards reforms have been rolled out in piecemeal fashion, with most changes enacted by Bills C-44, C-63, and C-86 still not yet implemented, and set to come into force on future dates to be fixed by order of the Governor in Council.

Bill C-86 explicitly ties the coming into force of numerous CLC changes to the coming into force dates of various CLC provisions enacted by earlier Bills C-63 and C-44, which have themselves yet to be fixed by orders of the Governor in Council. The end result is that a patchwork of CLC amendments will take effect in close proximity to each other, and in many cases, simultaneously, as if arising from a single piece of legislation.

Several CLC provisions enacted by Bill C-86 have now been scheduled to take effect in September, ahead of the October election. Labour Minister Patty Hajdu has also previously stated that the Government's rewrite of federal labour standards will be complete by Labour Day 2019.

Rolling implementation of CLC reforms raises the possibility of additional CLC changes being passed by Parliament in the months ahead, and coming into force at the same time as earlier amendments which have yet to take effect. Finance Minister Bill Morneau has announced that the Government will release its pre-election budget on March 19th. At this time, the Finance Minister has only announced that the Government's 2019 budget will address skills training, the housing needs of millennials, seniors' issues and the cost of prescription drugs.

Regardless of whether any new legislation results from the 2019 budget or the Expert Panel review, federally-regulated employers can expect the slow drip of CLC changes so far to give way to a downpour, as the Government's reform package comes into clear view and into force. With numerous CLC changes set to take effect by September and others still under consideration, federal labour standards modernization looks to be moving full steam ahead and on track for arrival in time for the October election.

Stay tuned to McCarthy Tétrault's Employer Advisor Blog for the latest updates on Canada Labour Code changes and compliance deadlines.

Footnotes

1 https://www.canada.ca/en/employment-social-development/services/labour-standards/reports/modernizing-federal-standards.html

2 http://www.parl.ca/DocumentViewer/en/42-1/bill/C-44/royal-assent

3 http://www.parl.ca/DocumentViewer/en/42-1/bill/C-63/royal-assent

4 http://www.parl.ca/DocumentViewer/en/42-1/bill/C-86/royal-assent

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