November 6, 2018

Significant Proposed Changes to the Canada Labour Code

The Canadian government has proposed changes to the Canada Labour Code that would significantly affect federal undertakings and federal workers. It is not yet known when Bill C-86, which was introduced in the House of Commons on October 29, 2018, will become law.

Under the proposed Bill, federal workers would be entitled to five days of paid leave for family violence, personal leave of five days (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 Bill would 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 would continue to be separate from severance entitlements).

Canada Labour Code (“CLC”)

Misclassification of Employees

  • Employers would 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 would bear the burden of proof that the individual is not an employee (s. 167.2).

Breaks/Rest Periods

  • Employees would 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 would 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 would be entitled to unpaid breaks that are necessary for medical reasons (s. 181.1(1)).
  • When requested by an employer, the employee would 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 would be entitled to unpaid breaks necessary for them to nurse or to express breast milk (s. 181.2).
  • Employees would be entitled to a rest period of at least eight consecutive hours between work periods or shifts (s. 169.2(1)).
  • An employer could require a shorter rest period under certain specific circumstances (for example threats to persons or property, etc) (s. 169.2(2)).

Scheduling

  • Employers would be required to provide work schedules at least 96 hours before shifts (s. 173.01(1)).
  • Employees would 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 would not be able to refuse shifts under certain specific circumstances (for example threats to persons or property, etc.) (s. 173.01(3)).
  • Employers would not be able to penalize employees for refusing shifts in compliance with the CLC (s. 173.01(5)).
  • The scheduling provisions would 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

  • Employees would 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 would 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 would 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 would 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 would 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 above (s. 203.1).

Vacation

  • Employees would 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).
  • Employees would 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).

Continuity of Employment

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

Court/Jury Duty

  • Employees would 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

  • Individual employees who are terminated would 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 would 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

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

Medical Leave

  • Employees would be entitled to an unpaid medical leave of absence from employment of up to 17 weeks as a result of:
    • (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 would 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 would 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 will not be able to be penalized for taking a medical leave of absence (s. 239(6)).

Posting Requirements

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

Personal Leave

  • Employees would 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;
    • (e) attending their citizenship ceremony under the Citizenship Act;
  • Employees who have completed three consecutive months of continuous employment with the employer would 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 would be able to require that each period of leave be of not less than one day’s duration (s. 206.6(3)).
  • Employers would 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

  • 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 proposed changes, if the employee has completed three consecutive months of continuous employment with the employer, the first five days of the leave would 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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