2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Revised Labour Standards for Federal Employers
On December 13, 2018, the federal government gave royal assent to a bill that promised substantial changes to the employment standards for federal employers. The changes themselves have not yet been implemented, however, this is expected in 2019 and will be subject to staggered implementation dates.
Overview of Key Changes
There are a number of the important changes affecting federally regulated workplaces:
Pay Equity Act
The Pay Equity Act (“PEA”) strives to eliminate the discrepancies of pay between genders where the work provided is of equal value. The PEA is not yet in force and the implementation date has yet to be determined. The obligations of employers will differ depending on whether the workplace is unionized or non-unionized and on the number of employees.
Employers who are subject to the PEA will be required to establish a pay equity plan within three years of the PEA coming into force. In addition, the PEA will require unionized employers with 10 or more employees as well as non-unionized employers with 100 or more employees to establish a pay equity committee.
A Pay Equity Commissioner (the “Commissioner”) will be appointed to monitor and ensure compliance with the PEA. Employers will be required to submit annual reports in relation to their pay equity plan to the Commissioner.
The PEA also establishes a dispute resolution mechanism. Disputes will be filed with the Commissioner. Disputes which cannot be resolved under the dispute resolution mechanism may be dismissed by the Commissioner or referred to the Canadian Human Rights Tribunal for determination. In addition, the Canadian Human Rights Act will be amended to include the Commissioner as a member of the Commission. In addition, the Canadian Human Rights Commission will create a Pay Equity Division to adjudicate complaints of gender pay inequity.
Canada Labour Code
Rest Periods and Break Requirements
Effective September 1, 2019, employers will be required to give employees a minimum of 8 consecutive hours of rest between shifts, along with a 30 minute unpaid break for every 5 consecutive hours of work. Paid breaks will be mandatory where employees are required to be available during the breaks. Employees will also be entitled to any necessary unpaid breaks for medical reasons or where employees are nursing.
Scheduling of Shifts
Effective September 1, 2019, employers will be required to provide employees with a minimum of 96 hours’ written notice before implementing a work schedule. Where less than 96 hours’ written notice will be provided, employees will be entitled to refuse to work the shift. The provision would not apply in the case of an emergency, if a collective agreement provides an alternate timeframe, or if the changes were requested by the employee.
Expanded Leaves of Absence
There will no longer be a requirement of minimum service to qualify for maternity leave, parental leave, leave related to critical illness and leave related to death or disappearance of a child. In addition, there will be four new leaves of absence:
- Medical Leave
Effective September 1, 2019, the previous sick leave will be replaced with a new medical leave. The length of the medical leave will be up to a maximum of 17 weeks. Employees will be required to provide supporting documentation from a “health care practitioner” as opposed to the previous requirement of supporting documentation from “qualified medical practitioner”.
- Personal Responsibility Leave
Employees will be entitled to take up to 5 days for reasons related to illness, injury, family responsibility, urgent matters, citizenship and education of any family member under 18 years of age. For employees with 3 months of continuous service, the first 3 days of leave will be paid. No date has been set for when this leave will take effect.
- Victims of Family Violence Leave
Employees will be entitled to paid leave for up to 5 days for reasons related to family violence. No date has been set for when this leave will take effect.
- Court/Jury Leave
Effective, September 1, 2019, employees will be entitled to an unpaid leave of absence to attend court to act as a juror, participate in the jury selection process or to appear as a witness. There will be no restriction to the length or frequency of court/jury leave.
Vacation and Holiday Pay
Effective September 1, 2019, the length of service requirement for general holiday pay will be eliminated.
Additionally, employees will be entitled to vacation time and vacation pay as follows:
- two weeks’ of vacation after 1 year of continuous employment (4% vacation pay);
- three weeks’ of vacation after 5 consecutive years of employment (6% vacation pay); and
- four weeks’ of vacation after 10 consecutive years of employment (8% vacation pay).
Termination of Employment
- Group Terminations
In addition to the existing requirement of 16 weeks’ notice to the Minister of Labour of a group termination, employers will also be required to provide at least 8 weeks’ notice, or pay in lieu, to all “redundant employees” who are dismissed as part of a group termination. No date has been set for when this change will take effect.
- Individual Terminations
Employees who are dismissed will be entitled to one week of notice for each year of continuous employment, up to a maximum of 8 weeks’ of notice. However, employees with 3 months to 36 months of continuous service will only be entitled to 2 weeks’ notice. No date has been set for when this change will take effect.
Temporary Help Agencies/Restrictions
Temporary help agencies will be prohibited from paying employees less than what the employer pays its own employees performing identical work. No date has been set for when this change will take effect.
Equal Pay for Equal Work
Employers will be prohibited from paying an employee differently for performing the same work on the basis of “employment status”. No employee, including part-time, contract or seasonal, can be paid less than what is paid to full-time employees who perform the same job, unless the employer demonstrates objective reasons to justify a differential wage rate, for example, seniority or merit. No date has been set for when this change will take effect.
Additional Changes to the Canada Labour Code
Other changes include:
- The minimum age of employment is set to be raised from 17 to 18 years of age. No date has been set for when this change will take effect.
- Employers will be required to reimburse employees for reasonable work-related expenses. This change will be subject to collective agreement provisions. No date has been set for when this change will take effect.
- Within an employee’s first 30 days of employment, employers will need to provide a statement of benefits outlining the benefits to which the employee is entitled to under the Canada Labour Code, including but not limited to, vacation benefits, wages and severance pay. There will also be an ongoing obligation on employers to keep this information up-to-date and to provide employees with updated copies where necessary. No date has been set for when this change will take effect.
Employment Insurance Act
A new five-week Employment Insurance (EI) Parental Sharing Benefit will be available as a “use it or lose it” benefit top-up when both parents agree to share parental leave. The new benefit will be available to eligible two-parent families, including adoptive and same-sex couples. This change will only apply to employees who have given birth to or adopted a child after March 17, 2019.
Wage Earner Protection Program Act
The definition of “eligible wages” will be expanded to include wages earned during the six month period before the date of filing of a notice of intention to make a proposal under the Business Insolvency Act. Additionally, the maximum payment of eligible wages will be increased to seven weeks of insurable earnings under the Employment Insurance Act. No date has been set for when this change will take effect.