Federally-regulated employers should be aware of upcoming changes to the Canada Labour Code (the “Code”). Bill C-63 received royal assent on December 14, 2017 and will introduce changes to work scheduling, overtime, vacation, bereavement leave and several statutory leaves of absence. While a date for implementation has not yet been set, we anticipate that the will take effect in 2018.

Notable amendments to the Code include the following:

Work Scheduling

Currently, an employer can introduce, modify or cancel a work schedule which exceeds the standard and/or maximum hours of work if approved by 70% of the affected employees (where the employees are not represented by a union). The Code will be amended to allow for a modified work schedule that affects only one employee to be agreed to by that employee.

Similarly, a new provision will allow an employee with greater than six months’ consecutive service the ability to request in writing a change to their hours of work, schedule or work location. Within 30 days of receiving the request, the employer is required to respond. A denial of the request must be provided in writing and can only be made on the basis that:

  • the change would result in additional cost to the employer;
  • the change would have a detrimental impact on quality of work;
  • the employer is unable to reorganize the workplace; or
  • if the change were granted, there would be insufficient work for the employee.

We note that, in addition to considering the above factors, an employer must also be mindful of their obligation to accommodate under the Canadian Human Rights Act (the “CHRA”) where the reason for the request is related to a characteristic protected by the CHRA.

The Code will also include a new requirement of employers to provide a minimum of 24 hours’ written notice prior to any shift changes or additions, except where the change or addition is necessary to address a reasonably unforeseeable situation – which could present an imminent or serious threat to the life, health or safety of any person, threat of damage to or loss of property or threat of serious interference with the ordinary working of the employer’s industrial establishment.

Overtime

Employees will be able to refuse overtime in order to fulfil a “family responsibility,” which includes the health or care of any of their family members or the education of any of their family members who are less than 18 years of age, provided the employee has taken reasonable steps to carry out the responsibility by other means and are still required to carry out that responsibility during the overtime period.

An exception is provided for the employer where the overtime is necessary to deal with a reasonably unforeseeable situation which could present an imminent or serious threat to the life, health or safety of any person, threat of damage to or loss of property or threat of serious interference with the ordinary operation of the employer’s industrial establishment.

Additionally, the Code will be amended to allow for the banking of overtime to be used as time off with pay at a later date where agreed to in writing with the affected employee.

Vacation

Annual vacations may, at the written request of the employee and if approved by the employer, be taken over more than one period of time. As well, by providing written notice to his or her employer, an employee may interrupt his or her annual vacation to take a statutory leave of absence.

Bereavement Leave

The Code will be amended to allow employees up to five days off work following the death of an immediate family member, which days off may be taken up to six weeks after the burial or memorial service. Employees with at least three months’ employment are entitled to pay for three of the five days off.

Additional Leaves of Absence

The Code will be amended to introduce three new leaves:

1. Family Responsibility Leave

Employees with more than three months’ consecutive service may take an unpaid leave of absence of up to three days per calendar year, by providing written notice, in order to carry out their responsibilities related to the health or care of any family members or the education of any of their family members who are less than 18 years of age.

2. Leave for Victims of Family Violence

Employees who are victims of family violence or are parents of a child who is a victim of family violence are entitled to an unpaid leave of absence of up to 10 days per calendar year, by providing written notice as soon as possible, to enable the victim to seek medical or psychological care, relocate, seek law enforcement assistance or legal assistance.

Employees are not entitled to the leave where it is probable that they committed the act of violence.

3. Leave for Traditional Aboriginal Practices

Employees with greater than three months’ consecutive service and who are Aboriginal (defined as Indian, Inuit or Métis) are entitled to an unpaid leave of absence of up to five days per calendar year, by providing written notice as soon as possible, to engage in traditional Aboriginal practices, including hunting, fishing and harvesting.

Employers should be mindful of these changes to the Code and review and revise policies and procedures as appropriate.