The Federal Government has recently put forward legislation to amend the Canada Labour Code to strengthen the existing framework for the prevention of harassment and violence, including sexual harassment and sexual violence, in the workplace.
On November 7, 2017, the government put Bill C-65, an Act to Amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and Budget Implementation Act, 2017 for first reading (“Bill C-65”). If Bill C-65 is passed by Parliament, it will amend the Canada Labour Code by providing rules relating to a federally-regulated employer’s obligations to prevent and address workplace harassment and violence.
The scheme set out in Bill C-65 proposes to focus on preventing incidents of harassment and setting out rules governing how employers are to respond to an incident of harassment. In particular, some of the key changes to the Canada Labour Code and its regulations include the following:
- Broadening the language of regulated conduct in a workplace. The proposed legislation’s scope has been broadened to prevent harassing activity, including harassment and violence, sexual or otherwise. The current language in the Canada Labour Code provides that the “purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment”. The proposed legislation broadens this language significantly to seek to “prevent accidents and physical or psychological injuries and illnesses arising out of, linked with or occurring in the course of employment”.
- Obligations on Employers to prevent harassment and violence and respond to incidents. Under the proposed legislation, employers now have a duty to “investigate, report, and record … all accidents, occurrences of harassment or violence, occupational illnesses and other hazardous occurrences known to the employer. Before, employers had a more limited duty to investigate “accidents, occupational diseases and other hazardous occurrences”.
- Dispute Resolution Processes. Bill C-65 provides some changes to the possible dispute resolution processes available to employees. Under the current legislation, employees may make complaints to their supervisor for contravention of occupational health and safety rules. In the case of a complaint relating to harassment or violence, employees may attempt to resolve the complaint informally with their supervisor. Employers and employees may refer a complaint to the Minister for investigation: (a) where the employer does not agree with the results of the investigation; (b) where the employer has failed to inform the persons who investigated the complaint of how and when the employer intends to resolve the matter or has failed to take action to resolve the matter; or (c) where the persons who investigated the complaint do not agree between themselves as to whether the complaint is justified; (d) in the case of a complaint relating to an occurrence of harassment or violence, the employee and the supervisor failed to resolve the complaint between themselves.
- Under Bill C-65, the Minister may decline to investigate if the Minister determines that the complaint has already been adequately dealt with or is “trivial, frivolous or vexatious”.
- Steps to prevent and protect against harassment and violence. Under the current legislation, employers must take steps to protect and prevent against violence. This duty has been expanded to include harassment and violence. Employers must also now “respond to occurrences of harassment and violence in the workplace and offer support to employees affected by harassment and violence in the workplace”
- Privacy. The proposed legislation also contains provisions ensuring the privacy of complainants. The law will prohibit employers and the Minister from disclosing to the health and safety representative or committee of an employer information that would reveal the complainant’s identity, unless the complainant consents to such disclosure.