Now that Alberta's new employment and labour law has been passed, Gowling WLG's Calgary Office provides a detailed summary of the changes and their implications.
Bill 17: The Fair and Family-friendly Workplaces Act, was introduced in the Alberta Legislature on May 24th and passed June 7, 2017. Whether it is "family-friendly" is a matter of opinion, but we can advise with certainty that it is not "employer-friendly."
The legislation includes significant changes that make it much easier to unionize a workplace and obtain a first collective agreement. Remote work sites and plants are now at risk because overtime provisions have changed and new compressed work schedules must be approved by majority employee agreement or included in a collective agreement.
There are also significant changes to enforcement, including large administrative penalties, inspections by Employment Standards Officers, and mandatory audit procedures. Employers will need to make changes now to their policies, employment practices and workplace strategies in order to minimize legal risk.
Below is a summary of the important changes.
EMPLOYMENT STANDARDS CODE
JOB PROTECTED LEAVES
- The eligibility period, for an employee to be entitled to take a leave, for all current and new leaves, will be reduced from 52 weeks to 90 days.
Changes to Existing Leaves
Maternal and Parental Leave:
- Leave increased from 15 weeks to 16 weeks.
- Includes entitlement to leave if pregnancy does not result in live birth.
- Job protection for parental leave remains at 37 weeks, but may be increased in the future to align with proposed federal Employment Insurance benefits.
Compassionate Care Leave
- Leave increased from 8 weeks to 27 weeks.
- Notice period of an employee's return to work reduced to 48 hours from 2 weeks.
- Includes entitlement to leave for all employees, instead of only to primary caregivers.
Introduction of New Unpaid Leaves:
- Parents of Critically Ill or Injured Child: 36 weeks to provide care or support to a critically ill child
- Crime Related Death or Disappearance of a Child: up to 52 weeks in the event of a disappearance of a child due to crime, or 104 weeks in the event of a death of a child due to crime
- Long Term Illness and Injury: up to 16 weeks of leave due to illness, injury or quarantine. Eligibility for leave requires production of medical certificate
- Domestic Violence: 10 days of leave
- Bereavement: 3 days of leave
- Domestic Violence: 10 days of leave
- Citizenship Ceremony: half day to attend ceremony
CHANGES TO EXISTING STANDARDS
Compressed Workweek (CWW)
- Existing CWW arrangements will remain valid until the coming into force of the new section on January 1, 2018, or the termination of the arrangement, whichever is earlier.
- CWW arrangements will be replaced by hours of work averaging agreements. One or more employees may enter into an hours of work averaging agreement requiring the employer to average an employee's hours of work for a period of 1 to 12 weeks in order to determine whether the employee is entitled to overtime pay or time off in lieu.
- All such agreements would require support of the majority of affected employees.
- Scheduled hours of work are to remain at a maximum of 12 hours per day and 44 hours per week.
- Overtime agreements will require employers to provide 1.5 hours of time off with pay for each hour of overtime worked. This marks an increase from the current 1 hour worked to 1 hour banked.
- The overtime banking period is increased from 3 months to 6 months.
- Employers are prevented from requiring employees to use any banked overtime during their termination notice period.
- The 30 day eligibility requirement for entitlement to holiday pay will be removed.
- All employees will be entitled to holiday pay regardless of whether the holiday falls on a "regular work day" or not.
- Employees require a minimum of a 30-minute break (paid or unpaid) for every 5 hours of consecutive work.
Minimum age of Employment
- The minimum age of employment is increased from 12 to 13 years.
- Persons aged 13-15 may perform work in accordance with the light work list, which is expected to be updated by the fall of 2018.
- Persons aged 16-17 may perform work that is not hazardous without any permit.
Termination and Layoff
- Employees who are laid off for more than 60 days in a 120 day period are deemed to have been terminated unless wages or benefits continue to be paid by the employer.
- Employers must provide an employee with notice of a temporary layoff.
- In the event of a group termination, employers will need to provide at least 8-16 weeks' notice to the Minister, depending on the number of employees being terminated.
Administration and Enforcement
- Limitation period for filing a complaint is increased to 2 years (from 1 year).
- Administrative penalties of up to $10,000 per day or for each contravention for failure to comply with legislation.
- New inspection and audit powers granted to Employment Standards Branch.
- Establishment of an administrative appeal body to hear appeals under the legislation. (Likely Alberta Labour Relations Board).
- Publication of information regarding employers found to contravene the Code will be allowed.
- Applications for exemptions from Employment Standards can be made by individual employers to the Director, or by employer organizations, or industry groups to the Minister. These will be subject to regulations to be promulgated and the outcome is unknown under the current government in Alberta. Such applications should be prepared and submitted well prior to January 1, 2018. For assistance, contact anyone in the labour and employment group at Gowling WLG.
LABOUR RELATIONS CODE
- Obligatory payment of union dues by employees in all collective agreements.
Union Certification Without A Vote
- A representation vote is not required if the union can satisfy the Board that at the time of the application for certification, the union has the support of more than 65% of the employees in the unit through a signed petition or cards. (Most unions can get more than enough cards signed in a certification drive!)
- A representation vote will only be required where union support is between 40 percent and 65 percent or where evidence of support is through a petition.
- The certification process will be subject to regulated timelines for certification.
- The Board may certify or decertify a union without any vote or majority support when either an employer or a union has engaged in unfair practices. The onus is now on employers to show that they did not commit an unfair labour practice.
- Dependent contractors (as distinguished from independent contractors) are now covered by the Labour Relations Code and permitted to unionize and bargain collectively.
- To determine whether a contractor is a dependent one, factors to consider include: economic dependence, workplace control and resemblance to employees.
First Contract Arbitration
- If parties negotiating a collective agreement are unable to reach an agreement within 90 days from the commencement of the collective bargaining process, they may apply to the Board for binding arbitration to conclude the first collective agreement. The application will be granted in cases of hard bargaining or unfair labour practices.
Broader Labour Board Powers
- Provide the Labour Relations Board with the power and ability to:
- order the pre-hearing production of documents;
- keep confidential any information that the Board believes would harm labour relations if disclosed;
- Expedite and prioritize the resolution of any complaints in which an employee has allegedly been discharged as a result of an unfair labour practice;
- require an employer, employers' organization, employee, trade union or other person to do or refrain from doing anything that it is equitable for that party to do or refrain from doing in order to remedy or counteract any consequence of the contravention or failure to comply with this Act or its purpose;
- make a marshalling order to ensure that a matter it not pursued in multiple forums; and
- review arbitration decisions in the first instance.
- Appealed Board decisions will proceed directly to the Court of Appeal.
Broader Arbitrator Powers
- Provide arbitrators with the power and ability to:
- Extend timelines for the grievance process and arbitration procedures;
- Make interim orders;
- Mediate; and
- Expedite hearings.
- The statutory wage freeze is extended from 60 days to 120 days.
- The burden is on the employer to establish that it did not engage in unfair labor practices in complaints arising from discipline, dismissal, discrimination or intimidation of an employee.
- Secondary picketing is permitted.
- The definition of essentials services was broadened to include a subsidiary health corporation of a regional health authority, health care laboratories and Canadian Blood Services as essential services provides.
The Fair and Family-friendly Workplaces Act amending Employment Standards will largely come into effect on January 1, 2018. Some changes to the Labour Code come into effect immediately, others on proclamation. This will dramatically impact your workplace.
We recommend that employers immediately do the following:
- Conduct a gap analysis of employment policies and practices to transition to compliance with the new legislation;
- Update hiring documents and policies to comply; and,
- Review employment practices and strategies in order to minimize the risk of unionization.
For compliance review or any questions please contact the Calgary Labour and Employment Law Group.