Bennett Jones
Written by Lori Sterling
This fall there will be significant labour reforms in the federal sector.
As well, consultations will continue on pay equity, pay transparency, protection of wages where the employer is bankrupt, sexual harassment, accessibility for persons with disabilities and reforms of labour standards to deal with part-time and temporary workers.
Here are the key changes for this fall.
Unpaid Interns
Unpaid internships are no longer allowed in federally regulated workplaces unless the student is part of a workplace learning experience that is a mandatory part of an educational program. The educational program must be at a recognized post-secondary or vocational educational institution. This reform was designed to halt the increase in unpaid internships.
Even if a student is allowed an unpaid internship, he or she is still subject to selected Canada Labour Code protections including general holidays, breaks, notice of schedule of work, maximum hours of work, maternity, bereavement, medical and other leaves. The unpaid intern is also covered by occupational health and safety protections and the new sexual harassment provisions.
All other students will be considered employees and entitled to the full range of labour protections including minimum wage.
New Employment Standards
These reforms relate to employment standards legislation passed in 2017 as well as some of the labour reforms passed in the 2018 Budget.
(i) Flex Work
Where an employee has at least six consecutive months of continuous employment, he or she will have the right to request flexible work arrangements. The employer has to consider the request but does not have to grant it where there are operational or financial reasons for the denial. Both request and response have to be in writing.
(ii) Leaves
- There is a new personal leave of up to five days with the first three days being paid. This leave is more generous and replaces prior medical leave provisions.
- There is a new provision requiring leave for court or jury days.
- There is an increase in entitlement to bereavement leave from three day to five days as long as an employee has three consecutive months of continuous employment. Only three of the five days are paid leaves. This leave need no longer be taken at one time.
- Indigenous persons can take up to five days for traditional practices.
- There is also a new leave to deal with victims of family violence. An individual can request up to ten days with five of these days being paid.
- There is no increase in vacation time. However, employees can now take annual vacations in more than one period.
- Employees will have the right to request replacement of a holiday which they have to work with any other day.
- In the longshore and other similar industries, employees are employed by multiple employers. The new regulations combine these employers for purposes of being eligible for certain leaves including the new ones noted above.
(iii) Hours of Work, Overtime and Notice of Schedule Change
There are new provisions to deal with overtime work. Where the employer agrees, employees may take time off instead of receiving pay for overtime hours worked.
Employers are also required to provide at least 96 hours’ notice of a schedule change and 24 hours’ notice of a shift change unless there is an emergency. Employees can also refuse overtime in some circumstances.
Where the nature of work necessitates an irregular distribution of hours of work, an employer can average those hours over a period of two weeks or more. This provision is particularly important in the transportation industry where an employee can work an extended period of time in one shift. The Regulations make it clear that any paid days for personal leave or family violence leave are included in the calculation of the average hours of work.
(iv) Record Keeping and Posting
There is also a new requirement for employers to keep records for a period of at least three years after the work is performed. As well, all employment standards have to be posted in an accessible location.
Compliance and Enforcement
The main reforms relating to administrative monetary penalties will not come into force until 2020 but in the fall of 2019 there will be the coming into force of the transfer of powers to the Canada Industrial Relations Board of appeals relating to occupational health and safety, labour standards and wage earner protections of a bankrupt firm.
Conclusion
The reforms listed above are significant but there are still many reforms that have been legislated but are not yet in force. The federal election in October 2019 may have slowed down implementation of the remaining reforms until at least the spring of 2020. As well, the outcome of the election may impact which reforms ultimately do come into force. Labour provisions are frequently changed when there is a change in the political party that forms the government.
If the Liberal government is re-elected, it is possible that there could be further reforms as the government appointed an independent panel on federal labour standards to consider further reforms. That report has just been published and has extensive recommendations including a freestanding federal minimum wage.
Even in the absence of further reforms, if all existing reforms are implemented, it will be the most significant reform of the Canada Labour Code in the last 50 years.
Stay tuned as we will be tracking these reforms in the coming year.
If you have any questions, please contact John Gilmore, John Batzel or Lori Sterling.