Significant changes to Alberta’s workplace laws are coming. On May 24, 2017, the Alberta government introduced Bill 17, the Fair and Family-friendly Workplaces Act (Bill 17), which proposes the biggest changes to Alberta’s Employment Standards Code (Employment Standards) and Labour Relations Code (Labour Code) in decades. It will affect all provincially regulated employers and most of the amendments are expected to be passed into law on January 1, 2018.
Some of the proposed changes, including the banking of overtime at increased rates and a flurry of new measures to promote, enhance and strengthen union activity in Alberta, may be controversial. The provincial government is likely to emphasize fairness and families as the debate surrounding Bill 17 unfolds, since a number of the proposed changes may be perceived as less favourable to Alberta employers. The most noteworthy changes are summarized below.
Leaves of Absence
A number of new unpaid leaves will be created for the following situations:
- Long-term illness and injury (up to 16 weeks per year)
- Personal and family responsibility (up to five days per year)
- Bereavement (up to three days per year)
- Domestic violence (up to 10 days per year)
- Citizenship ceremony (half-day to attend a citizenship ceremony)
- Critical illness of a child (up to 36 weeks)
- Death or disappearance of a child (up to 52 weeks where the child disappears as a result of a crime or up to 104 weeks if the child dies as a result of a crime)
Bill 17 also modifies and expands many of the leaves that are already in place:
- Extended from eight to 27 weeks
- Caregiver status to include non-primary caregivers
- Notice to return to work reduced to 48 hours from two weeks
Maternity and parental leave:
- Maternity leave extended from 15 to 16 weeks
- Parental leave remains at 37 weeks, but may be increased in the future
Notably, employees will be eligible for current and new leaves after just 90 days of employment (rather than one year as is presently the case). Many of these changes are being made in order to align with federal employment insurance benefits.
Overtime, Compressed Work Weeks and Rest Periods
Overtime agreements will allow for time to be banked for six months (instead of three months). Moreover, the calculation of overtime banking will be expanded from a ratio of 1:1 to 1:1.5. As a result, employers will be required to grant 1.5 hours off for each hour of overtime worked. Such a change does away with the advantage offered to employers by the banking of overtime (employers were previously able to offer one hour for every overtime hour worked rather than paying overtime pay equal to 1.5 time wages).
Compressed work week arrangements (allowing for more working hours in a day at the employee’s regular wage over a compressed period) will be renamed “averaging agreements” and will now require the support of the majority of affected employees (or be part of a collective agreement).
Employers will also be required to provide employees a minimum 30-minute break for every five hours of consecutive work (rather than a 30-minute break during each shift in excess of five consecutive hours of work).
Terminations and Temporary Layoffs
Employers will be prohibited from requiring employees to use vacation or banked overtime during the notice of termination period unless otherwise agreed to.
Bill 17 will also impose relatively onerous requirements on employers to notify the minister of labour of group terminations at a single location within a four-week period. Presently, employers are required to provide four weeks’ written notice. That notice requirement will now increase by an amount that depends on the number of employees being terminated: eight weeks’ notice for 50-99 employees; 12 weeks’ notice for 100-299 employees; and 16 weeks’ notice for 300 or more employees. Not only does this require employers to be more diligent, it also increases the likelihood of diminished productivity since workers will have a much longer “heads up” that their employment will be terminated.
Temporary layoffs that exceed 60 days (in total) within a 120-day period will amount to termination of employment, unless otherwise agreed to between the employer and the worker (i.e., the employee has agreed to the payment of wages and/or benefits during the temporary layoff period).
Statutory Holiday Pay
Aside from clarifying how holiday pay is to be calculated, Bill 17 also grants eligibility for statutory holiday pay to all employees (i.e., workers no longer need to be employed for 30 days in order to be eligible for statutory holidays).
A number of changes are also being considered with respect to youth employment, including elevating the minimum working age from 12 to 13. The government also intends to create a list of allowable “light work” that youth under 16 can do (i.e., accommodation and food services). Employing youth in a job not on the list will require a permit. The government is also contemplating the establishment of a list of “hazardous work” and prohibiting youth under 16 from working in jobs on that list (16 and 17-year-olds can only do hazardous work with a permit).
Enforcement and Administration
Bill 17 would also create a new administrative penalty system to fine employers who contravene Employment Standards. In addition, it would extend the period in which the government could bring a prosecution against an employer from one to two years.
Appeals will no longer by heard by umpires (provincial court judges) but instead by members of the Labour Relations Board (Board).
Farm and Ranch Workers
Farm and ranch workers (except for family members) will no longer be entirely exempt from Employment Standards.
Unsurprisingly, the proposed changes to the Labour Code are geared towards enhancing union powers and increasing union involvement in Alberta. Some of the most notable changes including the following:
Card Checks and Union Certification
Bill 17 proposes that Alberta adopt a hybrid card-check system in order to certify new trade unions. This is likely to have significant ramifications for union organization in Alberta. Where a union has 65 per cent or more support (as shown by workers signing cards or being members in good standing), the union can become the certified bargaining agent without a secret ballot vote taking place. If between 40 and 65 per cent of employees sign cards, then a secret ballot vote will be conducted. Where union support is shown by way of a petition, a vote will be required.
Most unions in Canada support card-check systems because secret ballots are less likely to result in union representation. The move to a card-check system (even a hybrid one) could escalate unionization in Alberta. Card checks also have the potential to create difficult working environments as union organizers and workers wanting union representation may influence their colleagues to sign cards. Another issue under the card-check system is that employers are less likely to be aware of union campaigns while they are taking place. As a result, unions tend to be the single or dominant source of information and workers may not always be given a balanced picture before electing to support a union.
Bill 17 will also extend the allowable period for union campaigns from 90 days to six months. As a result, unions can now apply for certification long after employees have applied for membership. During the period between an employee signing a card and the union applying for certification, it is possible that employees will change their mind about unionization but, as a result of moving to this hybrid card-check system, they may not have the chance to cast their vote through a secret ballot.
Firm timelines are also being imposed to ensure that certifications are dealt with promptly (20 days from the date of application or 25 days in situations involving a mail-in ballot).
First Contract Arbitration
First contract arbitration will now be available to employers and unions upon application to the Board. This will allow a union to have a first collective agreement imposed on an employer if the union is unsuccessful in bargaining over the course of 90 days. The Board will also have new, wide-ranging powers to direct the parties on next steps (i.e., tabling of final proposals, mediation, ordering votes). Failing a satisfactory outcome, the Board will also be empowered to require binding arbitration of a first collective agreement.
The inclusion of a Rand formula in collective agreements mandates that dues be deducted from employee pay and remitted to the union. Currently the inclusion of such a clause is negotiated by the parties during bargaining. However, it will now be imposed in all collective agreements upon a union’s request.
Unfair Labour Practices
Employers will now have the onus of disproving that an unfair labour practice occurred rather than an employee being required to prove that such conduct occurred. The introduction of this reverse onus provision will make it easier for employees to challenge employer actions such as discipline or dismissal.
The Board will also be empowered to grant a union automatic certification without a vote where an employer is found to have engaged in an unfair labour practice. Similarly, the Board may revoke a union’s certificate without a vote where a union is found to have engaged in an unfair labour practice.
Expanding the Labour Code’s Reach
Farm and ranch workers (except for family members) will now be able to unionize. Similarly, the definition of “employee” is being expanded to include dependent contractors, which will allow such individuals to collectively bargain with other employees.
Increased Board and Arbitrator Powers
The Board will now have the power to require documentary production in advance of a hearing, deferring disputes where other remedies may be available and prohibiting parties from making the same (or similar) applications. The Board will also be able to order the arbitration of a dispute where it deems an unfair labour practice is occurring.
Union representatives will be granted access to an employer’s worksite for the purposes of organizing or carrying out union business, where the Board requires it.
Significantly, arbitrators will be able to extend the time available to grieve a matter even if the time to do so has expired under the applicable collective agreement. Arbitrators will also be given a broad range of powers to expedite proceedings, make interim orders and resolve disputes.
Other notable changes include:
- Unions will have the explicit right to picket the secondary premises of an employer as well as locations of third parties helping an employer resist a strike
- The Board will no longer be able to suspend the deduction and remittance of union dues when an illegal strike is taking place
- Essential services will be expanded to include health care laboratories, blood supply services and continuing care facilities (including those that are non-profit and privately owned)
- Construction workers no longer need to be employed for 30 days before participating in a union certification vote
- Appeals from arbitration decisions will be heard by the Board (not the courts) and appeals from Board decisions will proceed directly to the Court of Appeal
Few changes to Bill 17 are expected given the government’s majority in the legislature. As a result, employers will soon face many new challenges including compliance and administrative issues, as well as broader strategic considerations.