Alberta's new piece of legislation, Bill 17: The Fair and Family-friendly Workplaces Act, introduced significant changes to both the Employment Standards Code ("ESC") and the Labour Relations Code ("LRC") effective January 1, 2018. The changes introduced by Bill 17 are intended to modernize the ESC and LRC, and to align the legislation with current practices across Canada.
This article provides a summary of some of these recent changes.
Changes to the Employment Standards Code
Hours of Work and Rest
- Employees are entitled to a minimum 30-minute break (paid or unpaid) within every five hours of consecutive employment rather than for every five consecutive hours of employment. The employer and employee may agree that each rest period be taken in two periods of at least 15 minutes each.
- Compressed work weeks have been renamed "Averaging Agreements," and must be approved by the majority of affected employees or contained within a collective agreement. Employees and employers will be able to agree to average hours of work over a period of 1-12 weeks for the purpose of calculating overtime pay or time in lieu of overtime pay.
Deductions from Earnings
- An employer cannot deduct earnings from an employee for faulty work or cash shortages (i.e. "dine and dash").
Overtime Hours and Overtime Pay
- Overtime can be banked for six months rather than three months, and overtime is now banked at 1.5 times an employee's wage rate, and no longer hour-for-hour.
General Holiday and General Holiday Pay
- The 30 day service requirement in the prior 12 months for eligibility for general holiday pay is removed.
- The distinction between regular and non-regular days of work has been removed.
Vacation and Vacation Pay
- Employees' vacation pay entitlement has been clarified to be 4% or two weeks of total wages for the first four years of employment, and 6% or 3 weeks thereafter.
- The employer may provide the vacation in two or more periods, so long as each vacation period is at least one-half day long rather than one-day long.
- Leave eligibility (except for reservist leave) is 90 days, rather than one year.
- Compassionate care leave has been extended to 27 weeks, from eight weeks. The caregiver status is expanded to include non-primary caregivers, and the notice required for return to work is reduced from two weeks to 48 hours.
- Maternity leave has been extended from 15 to 16 weeks.
- Long-term illness and injury leave: a new unpaid leave of up to 16 weeks per year for long-term personal sickness or injury.
- Domestic violence leave: a new unpaid leave of up to ten days per year for employees dealing with situations of domestic violence.
- Personal and family responsibility leave: a new unpaid leave of up to five days per year for personal sickness or short-term care of family members.
- Bereavement leave: a new unpaid leave of up to three days per year to be taken following the death of an immediate family member.
- Citizenship ceremony leave: a new unpaid half-day leave to attend a citizenship ceremony.
- Critical illness of a child leave: a new unpaid leave of up to 36 weeks for an employee who is a parent of a critically ill or injured child.
- Death or disappearance of a child leave: a new unpaid leave of up to 52 weeks for an employee whose child disappears as the result of a crime, or up to 104 weeks when an employee's child dies as the result of a crime.
- Administrative penalties have been introduced for contravention or failure to comply with the ESC. Administrative penalties can reach up to $10,000 for each contravention or failure to comply or for each day or part of a day on which the contravention or failure to comply occurs or continues.
- An employer who pays an administrative penalty in respect of a contravention or failure to comply will not be charged under the ESC with an offence in respect of the same contravention or failure to comply.
Changes to the Labour Relations Code
- Reverse onus: The onus of proving unfair labour practices is reversed in unfair labour practice complaints involving discipline, dismissal or other alleged intimidation of an employee. Rather than the employee being required to prove the action constituted an unfair labour practice, the employer is required to prove that it did not.
- Dependent contractors: "Dependent contractors" who only work for one employer are now included in the definition of employee, which allows contractors to unionize and bargain collectively.
- Automatic certification: Alberta's Labour Relations Board ("ALRB") has the power to certify or revoke certification in the absence of a majority vote.
- Card based certification for new trade union: The process for certifying a new trade union and decertifying already existing bargaining units is changed. If between 40-65% of employees sign cards in favour of a union, or decertification, a board-conducted vote will be required. If over 65% of employees sign cards, no board conducted vote will be required.
- Automatic due declaration: A union is now entitled to impose an automatic deduction of union dues, or charitable remittances in lieu of union dues, from wages as a term of the collective agreement.
- Union due during strike: There is no longer a provision that suspends the collection and remittance of union dues during an illegal strike.
- Picketing: Restrictions on secondary picketing are now removed, but the ALRB has the power to regulate.
- First contract arbitration: If an employer and newly-certified union are unable to negotiate a first collective agreement, either party is able to apply to the ALRB for assistance in settling the first collective agreement. The ALRB may direct the parties to binding arbitration.
- Essential services provisions: Continuing care facilities, health-care laboratories, and blood supply services are included within the essential services provisions. Strikes are still allowed, however, continued operation of the facility during labour disruptions must be accounted for in essential agreements.
- Board power: The ALRB has been provided with additional or expanded powers to, among other things: require a party to produce all documents related to a matter coming before it; restrict disclosure of certain sensitive commercial or labour relations information it receives; and, expedite proceedings where it appears than an employee was dismissed as a result of unfair labour practices.
Impact on Employers
As a result of Bill 17, all employers across Canada with operations in the Province of Alberta will need to assess their current policies and practices to determine what changes, if any, will be required to comply with the amendments to existing employment standards and labour legislation. Given that some of the changes may facilitate the unionisation of some employee groups, employers will also want to keep their eye out for increased union activity.