Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

Start by selecting your Topic of interest below. Then choose your Regions and finally refine the exact Subjects you are seeking clarity on to view detailed analysis provided by our carefully selected internationally recognised experts.

4. Results: Answers
Labour and Employment
Employment rights and representations
What, if any, are the rights to parental leave, at either a national or local level?

Answer ... All Canadian jurisdictions provide new parents with the right to take parental leave. In all jurisdictions, the statutory entitlement to parental leave is to unpaid time off work when a baby is born or first comes into the care of the parents. This leave is in addition to the maternity/pregnancy leave available for a mother and applies to biological as well as adoptive parents. Some Canadian jurisdictions require that an employee be employed by the same employer for a specified period before being eligible for parental leave.

Some Canadian jurisdictions provide for a single parental leave entitlement per birth/adoption. This means that the parental leave entitlement can be taken by one parent or shared by both parents. Other Canadian jurisdictions provide both parents with full individual parental leave entitlements.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
How long does it last and what benefits are given during this time?

Answer ... The length of parental leave varies depending on the Canadian jurisdiction and the applicable employment standards legislation. Employees may be provided with a greater right or benefit than the applicable minimum standard pursuant to an employment contract or collective agreement.

Some jurisdictions also allow for an extension of parental leave in certain circumstances. For example, in the province of Quebec, if the health of the child requires an extension of parental leave, the employee will be entitled to extended parental leave for as long as is indicated in a medical certificate. In other jurisdictions where extensions are permitted, employees are entitled to up to five consecutive weeks of additional parental leave.

While on parental leave, employees can continue earning credit for length of service and have a right to return to their job after parental leave. It is not permissible for an employer to penalise an employee because the employee is eligible for parental leave or intends to take parental leave. Moreover, employees on parental leave are entitled to continue participating in certain benefit plans and are eligible to receive employment insurance benefits from the government.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
Are trade unions recognised and what rights do they have?

Answer ... Trade unions are recognised in all Canadian jurisdictions. Collective bargaining legislation gives employees the statutory right to become members of a trade union. In all jurisdictions, this right is protected by statutory provisions which prohibit interference with those rights. For example, unfair labour practice provisions prohibit employers from interfering with the administration and activities of a trade union.

Trade unions are usually certified as the employees’ exclusive bargaining agent following a vote in which a majority of employees in the bargaining unit express their wish to be represented by the union. Following certification, trade unions represent employees in collective bargaining and labour disputes, as well in more routine workplace matters and political advocacy.

Legislation in each Canadian jurisdiction permits collective agreements to require that all employees within a bargaining unit be or become members of the signatory trade union, regardless of whether they personally support the union. Moreover, employees are generally required to pay trade union membership dues and it is permissible for employers to deduct these dues from employees’ wages and remit them to the union.

As the exclusive bargaining agent for the employees they represent, trade unions have a duty to represent their members fairly. This duty requires unions to treat their members in a manner that is not arbitrary, discriminatory or in bad faith.

Where a workplace is unionised and thereby covered by a collective agreement, the collective agreement governs the terms and conditions of employment. Employers cannot enter into individual employment contracts with the employees concerned.

In all Canadian jurisdictions, collective agreements are required to contain certain provisions. Generally, they must provide that the agreement’s term is at least one year and that strikes or lock-outs are prohibited during the term of the agreement. Thus, industrial action is permitted only once a collective agreement has expired and negotiations have broken down; or, where no collective agreement previously applied, in the case of a first contract negotiation following certification.

The Supreme Court of Canada has constitutionalised the right to meaningful collective bargaining and the right to strike. These rights are anchored in freedom of association, which is protected by the Canadian Charter of Rights and Freedoms. The charter applies only to government action and public employees, so the ambit of these constitutional principles is relatively limited in application.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
How are data protection rules applied in the workforce and how does this affect employees’ privacy rights?

Answer ... All Canadian jurisdictions have privacy and access to information laws that apply to government agencies within the jurisdiction. However, unlike the federal jurisdiction’s privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), most provinces do not have specific data protection legislation that applies to employment within the private sector. In fact, only Quebec, Alberta and British Columbia have enacted data protection statutes that have been deemed substantially similar to PIPEDA.

PIPEDA protects employees’ ‘personal information’, which it defines as information about an identifiable individual, except an employee’s name, title, business address and telephone number. PIPEDA requires employers to limit the collection of personal information to that which is necessary for the purposes identified by the employer.

Common law principles and human rights law are also developing in ways that promote and protect personal privacy. Canadian courts and tribunals have broadly accepted internationally recognised principles of privacy and data protection, such as the requirement of specific and informed consent to collection, use and disclosure of personal information. The Ontario Court of Appeal has also recognised the privacy-related tort of ‘intrusion upon seclusion’.

Common privacy issues in the workplace include surveillance, collection and use of personal health information, drug and alcohol testing, biometrics and background checks.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
Are contingent worker arrangements specifically regulated?

Answer ... Canadian jurisdictions do not specifically regulate independent contractor relationships through employment standards legislation. However, as the courts have held that the term ‘employee’ is to be broadly and liberally interpreted, it is possible for the definition of an ‘employee’ to encompass independent contractors and other contingent workers. For example, in some jurisdictions, health and safety laws have been interpreted to include independent contractors in the definition of a ‘worker’. Similarly, while an individual may claim to be an independent contractor, the courts may still consider the individual to be an employee of the employer based on the true nature of the relationship. If the court determines that the individual is in fact an employee of the employer, that employee will be afforded employment protection under both the common law and employment legislation for the applicable jurisdiction.

Many Canadian jurisdictions specifically regulate aspects of the employment of foreign workers and contingent workers such as temporary help agency workers.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
Labour and Employment