The Canada Labour Code (the “Code”) has been recently amended by Bill C-63.

The changes made by Bill C-63 enhance the rights of federally regulated employees and provide them with greater flexibility in the workplace with respect to scheduling, hours of work and overtime as well as additional job-protected leaves of absence. In this communique, we will provide an overview of these changes.

New Leaves

Bill C-63 introduces Family Responsibility Leave, Family Violence Leave and Aboriginal Practices Leave:

Family Responsibility Leave

The Code introduces a new leave entitled Family Responsibility Leave. Employees who have completed three consecutive months of continuous employment are entitled to a leave of absence from employment of up to three days in every calendar year to carry out responsibilities related to the health or care of any of their family members or the education of any of their family members who are under 18 years of age. The employer may request documentation to support the reasons for the leave within 15 days of the employee’s return to work. Employees must produce this documentation provided it is reasonably practicable for them to obtain it.

Family Violence Leave

An employee who is a victim of family violence, or who is the parent of a child who is the victim of family violence, is entitled to take up to 10 days of leave in every calendar year in order to enable the employee to:

  • seek medical attention for themselves or their child in respect of a physical or psychological injury or disability;
  • obtain services from an organization which provides services to victims of family violence;
  • obtain psychological or other professional counselling;
  • relocate temporarily or permanently;
  • seek legal or law enforcement assistance or to prepare for or participate in any civil or criminal legal proceeding; or
  • to take any measures prescribed by regulation.

This leave does not apply to an employee who is charged with an offence related to family violence or if it is probable, given the circumstances, that the employee committed the family violence.

The employer may request documentation to support the leave within 15 days of the employee’s return to work. The employee has to provide such documentation if it is reasonably practicable for them to do so.

Aboriginal Practices Leave

An employee who is an Aboriginal person and has completed three consecutive months of continuous employment may take a leave of absence of up to five days in a calendar year in order to engage in traditional Aboriginal practices including hunting, fishing, harvesting and any practice prescribed by regulation. Employers may request supporting documentation from the employee.

Scheduling

Shift Changes

Federally regulated employers must now provide 24 hours’ notice of a shift change. If an employer changes a work period or shift or adds another work period or shift to the employee’s schedule, the employer has to give the employee 24 hours’ notice. Exceptions may apply if the change or addition of a work period or shift is necessary to deal with a situation that the employer could not have reasonably foreseen and that presents or could reasonably be expected to present an imminent or serious threat to the life, health and safety of any person, a threat of damage to or loss of property, or a threat of serious interference with the ordinary working of the employer’s industrial establishment.

Flexible work arrangements

The Code now also includes new provisions entitled “Flexible Work Arrangements”. After completing six consecutive months of continuous employment, an employee may request, in writing, a change to his/her number of hours, work schedule or location of work. Within 30 days of receiving the request, the employer must issue a written decision to the employee. The employer can either grant the request, offer to grant it in part, or refuse the request on the basis that it would result in:

  • additional costs that would be a burden on the employer;
  • a detrimental impact on the quality or quantity of work, ability to meet customer demands or any other aspect of performance within the industrial establishment;
  • an inability to reorganize work among existing employees or to recruit additional employees in order to manage the change that is requested;
  • insufficient work available for the employee; or
  • any other prescribed ground.

If the employee’s request is refused, the employer must include written reasons for refusing the request.

If there is a collective agreement governing the terms and conditions of employment, and granting the request would result in a change to the terms and conditions, the union and employer must agree in writing to such a change.

Changes to Overtime

Lieu Time

Employees who are required or permitted to work overtime may now be compensated for working overtime by receiving not less than one and one-half hours of time off with pay for each hour of overtime worked. The employee and employer must agree in writing and the time off must be taken within a period of three months after the end of the pay period during which the overtime was worked, or a longer period, with agreement. If the employee is not subject to a collective agreement, the employee must take the time off not more than 12 months after the end of the pay period during which the overtime was worked. Any banked time off must be paid out by the employer within 30 days of termination of employment.

Right to Refuse Overtime

An employee may refuse to work overtime in order to fulfill certain family responsibilities that relate to the health or care of any of the employee’s family members or the education of any family member who is under 18 years of age. However, in order to refuse the overtime, the employee must first take reasonable steps to carry out the family responsibilities by other means, so as to allow him/her to work the overtime. The employee should only refuse the overtime if he/she is still required to carry out that responsibility during the period of the overtime. The employee also cannot refuse to work overtime if it is necessary for them to work overtime to deal with a situation that the employer could not have reasonably foreseen and would present a threat to life, health, safety or a threat of damage or loss of property or serious interference with the ordinary working of the employer’s establishment.

Federally regulated employers should review their policies and practices to ensure that they are compliant with these amendments.