July 30, 2019

Significant Changes to the Canada Labour Code Now Imminent

The Canadian government’s proposed changes to the Canada Labour Code received royal assent on December 13, 2018. Many of the changes will come into effect on September 1, 2019.

These changes will impact federal workers who are subject to the Canada Labour Code (and will not impact workers who are instead covered by provincial employment standards legislation). Employees who are covered by the Canada Labour Code include, but are not limited, to those in the following sectors:

  • banking,
  • air transportation,
  • railway and road transportation that involves crossing provincial or international borders,
  • radio and television broadcasting, and
  • most federal Crown corporations.

Under the amendments, federal workers will be entitled to five days of paid leave for family violence, five days of personal leave (with three paid days after three months of continuous employment), unpaid leave for court or jury duty, and a fourth week of annual vacation with pay after at least 10 consecutive years of employment.

The changes also mandate equal pay for equal work (for both employers and temporary help agencies) and update termination provisions by increasing the minimum notice of termination (which will continue to be separate from severance entitlements).

Canada Labour Code (“CLC”)

Misclassification of Employees (September 1, 2019)

  • Employers will be prohibited from treating an employee as if they were an independent contractor in order to avoid their obligations or to deprive an employee of any rights or benefits (s. 167.1).
  • Employers will bear the burden of proof that the individual is not an employee (s. 167.2).

Breaks/Rest Periods (effective September 1, 2019)

  • Employees will be entitled to an unpaid break of at least 30 minutes during every period of five consecutive hours of work. If the employer requires the employee to be available to work during the break period, the employee must be paid for the break (s. 169.1(1)).
  • An employer will be able to postpone/cancel the 30 minute break under certain specific circumstances (for example threats to persons or property, etc) (s. 169.1(2)).
  • Employees will be entitled to unpaid breaks that are necessary for medical reasons (s. 181.1(1)).
  • When requested by an employer, the employee will be required to provide a certificate issued by a health care practitioner setting out the length and frequency of the breaks needed for medical reasons (s. 181.1(2)).
  • Employees who are nursing will be entitled to unpaid breaks necessary for them to nurse or to express breast milk (s. 181.2).
  • Employees will be entitled to a rest period of at least eight consecutive hours between work periods or shifts (s. 169.2(1)).
  • An employer may require a shorter rest period under certain specific circumstances (for example threats to persons or property, etc) (s. 169.2(2)).

Scheduling (effective September 1, 2019)

  • Employers will be required to provide work schedules at least 96 hours before shifts (s. 173.01(1)).
  • Employees will be able to refuse shifts in their schedule that start within 96 hours of the schedule being provided to them (s. 173.01(2)).
  • Employees will not be able to refuse shifts under certain specific circumstances (for example threats to persons or property, etc.) (s. 173.01(3)).
  • Employers will not be able to penalize employees for refusing shifts in compliance with the CLC (s. 173.01(5)).
  • The scheduling provisions will not apply to employees who are employed under the terms of a collective agreement that specifies an alternate time frame for providing the work schedule or provides that this section does not apply to those employees (s. 173.01(7)).

Equal Pay for Equal Work (effective on a day to be fixed by order of the Governor in Council but no earlier than September 1, 2019)

  • Employees will be entitled to equal pay for equal work if: 1) they work in the same industrial establishment; 2) they perform substantially the same kind of work; 3) the performance of that work requires substantially the same skill, effort and responsibility; and 4) their work is performed under similar working conditions (s. 182.1(1)).
  • Equal pay for equal work will not apply if the difference in pay is due to: 1) seniority; 2) merit; or 3) the quantity or quality of each employee’s production (s. 182.1(2)).
  • Employers will not be able to reduce an employee’s rate of wages in order to comply with the equal pay for equal work provisions (s. 182.1(3)).
  • Employees will be able to request a review of their rate of wages in writing and employers would be required to respond in writing within 90 days outlining whether the employer has increased the employee’s rate of wages or the reasons that the employee’s current rate of wages complies with the equal pay for equal work provisions (s. 182.2(1)).
  • If the employer increases the rate of wages under s. 182.2(1), then the employer will be required to pay the employee an amount equal to the difference between the two rates of wages from the day the employee made the written review request to the day the employer starts paying the employee the increased rate of wages (s. 182.2(2)).
  • Employers would not be able to penalize employees for making a written request for a wage review (s. 182.2(3)).
  • Temporary Help Agencies would also be subject to equal pay for equal work provisions, substantially similar to the ones

Vacation (effective September 1, 2019)

  • Employees will be entitled to at least four weeks of vacation if they have completed at least 10 consecutive years of employment with the same employer (s. 184(c)).
  • Employees will be entitled to 4% of their wages for vacation pay if they have less than five years of service; 6% of their wages for vacation pay if they have completed at least five consecutive years of employment with the same employer; and 8% of their wages for vacation pay if they have at least 10 consecutive years of service with the same employer (s. 184.01).

Holiday Pay (effective September 1, 2019)

  • The 30-day service requirement for an employee to be entitled to holiday pay for a general holiday is eliminated.

Continuity of Employment (effective September 1, 2019)

  • The continuity of employment provisions under s. 189 when there is a transfer of work, undertaking or business will be altered and resemble the similar provisions under the Employment Standards Act, 2000 (s. 245).

Court/Jury Duty (effective September 1, 2019)

  • Employees will be entitled to an unpaid leave of absence to attend court to (a) act as a witness in a proceeding; (b) act as a juror in a proceeding; or (c) participate in a jury selection process (s. 206.9).

Termination (effective on a day to be fixed by order of the Governor in Council)

  • Individual employees who are terminated must be given notice or pay in lieu of notice as follows (s. 230(1.1)):
    • (a) two weeks, if the employee has completed at least three consecutive months of continuous employment with the employer;
    • (b) three weeks, if the employee has completed at least three consecutive years of continuous employment with the employer;
    • (c) four weeks, if the employee has completed at least four consecutive years of continuous employment with the employer;
    • (d) five weeks, if the employee has completed at least five consecutive years of continuous employment with the employer;
    • (e) six weeks, if the employee has completed at least six consecutive years of continuous employment with the employer;
    • (f) seven weeks, if the employee has completed at least seven consecutive years of continuous employment with the employer; and
    • (g) eight weeks, if the employee has completed at least eight consecutive years of continuous employment with the employer.
  • Employers will be required to provide a written statement to terminated employees that sets out their vacation benefits, wages, severance pay and any other benefits and pay arising from their employment with the employer as at the date of the statement (s. 230(2.2)).

Reimbursement of Work Expenses (effective on a day to be fixed by the Governor in Council)

  • Employees will be entitled to receive reimbursement of reasonable work-related expenses (s. 238.1(1)).

Medical Leave (effective September 1, 2019)

  • Employees will be entitled to an unpaid medical leave of absence from employment of up to 17 weeks as a result of (s. 239(1)):
    • (a) personal illness or injury;
    • (b) organ or tissue donation; or
    • (c) medical appointments during working hours.
  • If the medical leave of absence is three days or longer, the employer will be able to require that the employee provide a certificate issued by a health care practitioner certifying that the employee was incapable of working for the period of time that they were absent from work (s. 239(2)).
  • Employees will be required to give at least four weeks’ notice of the medical leave, unless there is a valid reason why that notice cannot be given, in which case the employee must provide the employer with written notice as soon as possible (s. 239(3)).
  • Employees cannot be penalized for taking a medical leave of absence (s. 239(6)).
  • The pension, health and disability benefits and the seniority of an employee who is absent from work due to medical leave accumulate during the entire period of the medical leave of absence (s. 239(8)).

Other Leaves (effective September 1, 2019)

  • Employees will no longer be required to complete six months of continuous service before being entitled to Maternity Leave, Parental Leave, a Leave Related to Critical Illness or a Leave Related to Death or Disappearance.

Posting Requirements (effective on a day to be fixed by the Governor in Council)

  • Employers will be required to provide employees with a copy of any materials the Minister makes with regard to employment rights available within 30 days of employment (s. 253.1(1)).
  • Employers will be required to post a copy of any materials the Minister publishes with regard to employment rights available in readily accessible places in the workplace (s. 253.1(2)).
  • For terminations, employers will be required to provide a copy of any materials the Minister publishes with regard to terminations of employment by no later than the last day of employment (s. 253.1(3)).

Personal Leave (effective September 1, 2019)

  • Employees will be entitled to a leave of absence from employment of up to five days in every calendar year for (s. 206.6(1)):
    • (a) treating their illness or injury;
    • (b) carrying out responsibilities related to the health or care of any of their family members;
    • (c) carrying out responsibilities related to the education of any of their family members who are under 18 years of age;
    • (d) addressing any urgent matter concerning themselves or their family members; or
    • (e) attending their citizenship ceremony under the Citizenship Act.
  • Employees who have completed three consecutive months of continuous employment with the employer will be entitled to the first three days of the leave with pay at their regular rate of wages for their normal hours of work, and such pay shall for all purposes be considered to be wages (s. 206.6(2)).
  • Employers will be able to require that each period of leave be of not less than one day’s duration (s. 206.6(3)).
  • Employers will be able to request, in writing and no later than 15 days after an employee’s return to work, that the employee provide documentation to support the reasons for the leave. The employee would be required to provide that documentation only if it is reasonably practicable for them to obtain and provide it (s. 206.6(4)).

Family Violence Leave (effective September 1, 2019)

  • Currently, employees who are victims of family violence, or who are the parents of a child who is a victim of family violence, are entitled to 10 days of leave per calendar year (s. 206.7(2)).
  • Under the changes, if the employee has completed three consecutive months of continuous employment with the employer, the first five days of the leave will be paid at their regular rate of wages for their normal hours of work, and such pay shall for all purposes be considered to be wages (s. 206.7(2.1)).

LEGAL DISCLAIMER: This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation.
Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.

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