Canada: Updates On Changes To The Canada Labour Code

Last Updated: October 1 2019
Article by Christopher Buchanan

We have two important updates on changes to the Canada Labour Code that will impact federally-regulated employers, including some First Nations and companies engaged in telecommunications, aviation, navigation and shipping, interprovincial transport, pipelining, and banking (among others).

Newly Proposed Administrative Monetary Penalties Regulations

As we previously reported, the federal government passed legislation in 2017 and 2018 that significantly changed the Code. One of the amendments not yet in force is the creation of Part IV, which introduces Administrative Monetary Penalties ("AMPs"). AMPs are intended to address widespread non-compliance with Parts II and III of the Code by giving the government additional enforcement tools. On August 24, 2019, the federal government announced new draft Administrative Monetary Penalties Regulations, which provide more details on how AMPs would be issued.

Under the draft Regulations, almost any contravention of a provision in Parts II and III of the Code would be considered a violation that would attract an AMP. AMPs range in value from $200 to $50,000, depending on the type of violation and whether the violator is an individual, small business, or large business. Generally, the more severe the violation, the higher the AMP. Take note that any employer who receives an AMP will have their name published.

The federal government is seeking feedback from employers on the proposed Regulations until November 22, 2019.

If approved, Part IV of the Code and the Regulations would come into force sometime in 2020.

Coming Into Force of New Employment Standards under Part III

On September 1, 2019, new employment standards came into force under Part III of the Code.

The implementation of these changes has created confusion for some employers, as it is not always clear whether and how the new rules apply to them. Adding to the uncertainty is the lack of regulations for these new provisions, which the federal government will not pass until after the federal election in October 2019.

In an attempt to address this confusion, the federal government has issued Interpretations, Policies, and Guidelines ("IPGs") regarding the interpretation of the Code. These IPGs are reference documents only, however we have included links to the relevant IPGs below. The Minister of Employment, Workforce Development and Labour has also advised that the federal government will be implementing certain interim exemptions very soon.

Employees subject to Part III of the Code are now entitled to the following:

Hours of Work and Overtime

  • Unpaid (or Meal) Break:
  • Medical Break:
  • Entitled to unpaid breaks that are necessary for medical reasons.
  • Breastfeeding Break:
  • Entitled to unpaid breaks to breastfeed or express milk for breastfeeding.
  • Rest Periods:
  • Overtime:
  • Notice of Shift Change:
  • Flexible Work Arrangements:

    • May request after 6 months of service.
    • Requests may be for changes to work schedule, start/finish times, location of work, or other working conditions.
    • Employers must respond to requests within 30 days and provide written reasons for denying any requested changes.
    • Requests may be denied based on specific grounds listed in the Code or under regulation.

Leaves and Pay

  • Vacation Leave and Pay:

    • Entitled to 2 weeks of leave (or 4% vacation pay) after 1 year of service.
    • Entitled to 3 weeks of leave (or 6% vacation pay) after 5 years of service.
    • Entitled to 4 weeks of leave (or 8% vacation pay) after 10 years of service.
    • May be taken in more than one period.
    • May be postponed/interrupted if eligible for another leave.
  • General Holiday Pay:
  • Available immediately upon hire.
  • Will be at least 1/20th of employee's wages (excluding overtime) for the 4 week period immediately preceding the week in which the holiday occurs.
  • Employers may substitute any other day for a general holiday if the substitution is approved in writing by at least 70% of the affected employees.
  • Personal Leave:
  • Entitled to up to 5 days off with 3 of those paid after 3 months of service.
  • To be used for addressing an urgent personal or family matter, treating illness or injury, caring for a family member, dealing with education matters for children under 18 years, and other reasons prescribed by regulation.
  • IPG-096, IPG-097, IPG-098, IPG-099
  • Medical (formerly Sick) Leave:
  • Available immediately upon hire.
  • May be used for appointments and organ/tissue donation.
  • Maternity and Parental Leave:
  • Available immediately upon hire.
  • Critical Illness Leave:
  • Available immediately upon hire.
  • Death or Disappearance of Child Leave:
  • Available immediately upon hire.
  • Traditional Aboriginal Practices Leave:
  • For use by First Nations, Inuit, or Métis persons.
  • Entitled to up to 5 days off after 3 months of service.
  • To be used to engage in traditional Indigenous practices, such as hunting, fishing, harvesting, and any practice prescribed by regulation.
  • IPG-098
  • Victims of Family Violence Leave:
  • Entitled to up to 10 days off with 5 of those paid after 3 months of service.
  • To be used to seek medical attention for themselves or their child, receive victim services, receiving counselling, relocate temporarily or permanently, seek legal or law enforcement assistance, participate in legal proceedings, and take any measures prescribed by regulation.
  • IPG-098
  • Court or Jury Duty Leave:
  • Entitled to take the time off necessary to attend court to be a witness or juror.
  • Bereavement Leave:
  • Entitled to up to 5 days off with 3 of those paid.

Definitions

  • Health Care Practitioner:
  • Replaces "qualified medical practitioner."
  • Means "a person lawfully entitled, under the laws of a province, to provide health services in the place in which they provide those services."
  • New definition provides more sources to obtain supporting medical documentation.
  • Continuous Employment:
  • An employee will be deemed to have continuous employment for the purposes of the Code despite the lease or transfer of a work, undertaking or business (or any part thereof) from one employer to another by sale, merger, or any other manner when such operation before or after the lease or transfer is or becomes a federal work, undertaking or business.
  • Applies to employees whose employers transfer from provincial to federal regulation.
  • Employees will also have continuous employment where their work is transferred from one employer to another through a retendering process.

Many of these provisions are subject to certain conditions and exceptions, and IPGs do not necessarily provide the complete picture. For any questions about the implementation and application of the Code.

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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