The Alberta Government released the Employment Standards Amendment Regulation, Alta 246/2017, which amends the existing Regulation and brings further changes to Alberta’s Employment Standards regime.
These changes come into force on January 1, 2018 along with the Employment Standards Code changes.
The most notable amendments to the Regulation include:
1. Deductions From Earnings
a. A definition has been added for the provision relating to no deductions for “faulty work”. “Faulty work” includes any act or omission of an employee that results in a loss to the
b. An additional unauthorized deduction has been added. Employers are prohibited from making a deduction out of earnings for the furnishing, use, repair or laundering of any uniforms or other apparel that employees are required to wear during their hours of work.
2. Averaging Agreements
a. The Regulation establishes two types of hours of work averaging agreements (HWAAs) that replace the compressed work week regime. In addition to the regular Averaging Agreement arrangement, a new Flexible Averaging Agreement has been implemented. These agreements are only available at the request of an employee who regularly works at least 35 hours per week. Under a flexible HWAA, employers may set a daily overtime threshold, which can be an amount greater than the employee’s scheduled hours of work, but cannot be more than 10 hours in a day. Where the employee works an amount over their scheduled daily hours but less than the daily overtime threshold, they can bank this flexible time at straight time and take it off at any point within the averaging agreement cycle. Unlike regular HWAAs which can run up to 12 weeks, flexible HWAAs cannot exceed two weeks. Overtime at the regular rate still accrues where the employee works overtime over the daily overtime threshold or in excess of the 44 hour/week average.
b. An employer must specify the employee’s work schedule for the averaging period, which must identify all work days and the number of hours to be worked on each of those work days. An employer can make a temporary change to an employee’s work schedule if at least two weeks’ notice is provided to the employee (or unless an accident has occurred, urgent work is necessary or there are other unforeseen or unpreventable circumstances).
c. The amended Regulation also allows Averaging Agreements to be cancelled upon 30 days’ notice by either party (or, in the case of a group of employees, with majority consent). The parties to a HWAA may also renegotiate the agreement at any time.
3. Variances and Exemptions
a. Variances or exemptions can be issued by the Director with respect to maximum hours of work per day, maximum days of consecutive work, extending the averaging agreement period up to 26 weeks and reducing the minimum hours of pay.
b. The Regulation also sets out the following factors to be considered by the Director in evaluating such applications:
- the applicant’s compliance history relating to employment standards legislation and occupational health and safety legislation;
- the rationale for the request;
- whether there is support for the proposed variation or exemption by bargaining agents or employees; and
- any effect the variance could have on the safety, health or welfare of the public or employees.
4. Leaves of Absence
a. Maternity and parental leave have been amended to align with the recent changes resulting from the Employment Insurance Act:
- Maternity leave can now start at any time during the 13 weeks immediately before the estimated date of delivery;
- The length of parental leave has been extended to 62 consecutive weeks, which may be taken immediately following the last day of maternity leave or, for parents who are not entitled to maternity leave, within 78 weeks after the child is born or placed with an adoptive parent.
b. The critical illness of a child leave has been replaced with a critical illness leave, and now includes leave of up to 16 weeks for the purpose of providing care or support to a critically ill adult family member. The length of leave for a critically ill child remains at 36 weeks.
c. The term “family member” has been defined for the purpose of personal and family responsibility leave. Notably, the definition is more restrictive than the family members that fall within the compassionate care leave, and does not include aunts, uncles, nephews, nieces or the partners of certain family members. For the purpose of bereavement leave, family member carries the broader definition set out in compassionate care leave.
5. Medical Certificates
a. Nurse practitioners are now authorized to sign any medical certificate referred to under the Act.
6. Administrative Penalties
a. A schedule of administrative penalties has been introduced into the Regulation. Minimum penalties range from $500 to $6,000, depending on the particular section contravened and whether the offense was a first, second, third or subsequent contravention within three years. The Director has authority to increase the minimum penalty based on the circumstances of the contravention, including the number of employees affected.
7. Publication of Documents
a. Where a Director makes an Order against an employer for a contravention of legislation, the Regulation confirms that the Director must publish the name and address of the employer, the provision of the legislation contravened, the amount of any fine or penalty, the amount of any unpaid earnings, if applicable, and the date of the Order. The published information must be removed when the person subject to an enforcement action satisfies the judgment.
8. Group Termination
a. Group termination notices are no longer required if the employees are employed on a seasonal basis or for a defined term or task.
Employers should ensure that their employment policies are updated prior to January 1, 2018.