Federally-regulated employers should take note of the following recent changes to the Canada Labour Code (“Code”) and the Canadian Human Rights Act (“CHRA”):
Return to a Card-Based System
Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, amends the Code and rolls back changes introduced two years ago by the Employees’ Voting Rights Act, which required secret ballot votes in all certification cases and abolished card-based certification.
Bill C-4 restores the former certification and decertification processes. In particular, the provisions requiring a secret ballot vote for all certification applications are repealed. A vote will only be required where a union demonstrates evidence of membership support of 35 to 50% of the employees in the proposed bargaining unit. As a result of Bill C-4, a union may become certified without a vote if it provides membership evidence of a majority of the employees in the proposed bargaining unit.
In addition, in the case of applications for revocation of certification, the threshold for applying for revocation of certification of a union is raised from 40% to a majority of employees in the bargaining unit.
Bill C-4 came into force on June 19, 2017 and will apply to applications for certification and revocation of certification filed with the Canadian Industrial Relations Board on and after June 22, 2017.
“Gender Identity” and “Gender Expression” are added to the Canadian Human Rights Act
Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code, amends the CHRA, adding gender identity and gender expression as prohibited grounds of discrimination. The purpose of this amendment is to protect transgender and other gender diverse persons from discrimination and brings the CHRA in line with provincial human rights legislation, such as the Ontario Human Rights Code.
While not defined in the CHRA, employers can take guidance from the ways in which these terms have been interpreted in the provinces. In Ontario, the term “gender identity” generally refers to each person’s internal and individual experience of gender. A person’s gender identity may be the same or different from the gender typically associated with their sex assigned at birth. In addition, “gender expression” refers to the way in which people publicly present their gender.
Employers will have a duty to accommodate transgendered or gender diverse persons. Accommodations may include providing access to washrooms based on gender identity, ensuring dress codes are inclusive and providing supports to gender transitioning employees. We expect that the practical implications of employers’ obligations under the CHRA with respect to the duty to accommodate will evolve as the legislation is interpreted.