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Update on Changes to Alberta’s Employment Standards and Labour Relations Legislation

31-May-17

By Hugh McPhail, Q.C.

Last week we provided you with an update on the new Bill within a couple of hours of it being tabled in the Legislature, which was based on a briefing by the Ministry without seeing the actual legislation. Now that we have had a chance to review the 252-page document which represents Bill 17, as we promised we would do, we would like to update that information. The following is an update on matters which were either omitted or misunderstood from the short briefing or which we feel should be covered in more detail. This should be read as a supplement to that earlier summary and read with it.

Employment Standards Code Changes

  • Parental leave is not immediately increased under the new Bill from 37 weeks to 52 weeks. That change is not mentioned in the legislation, but we are assured by the Ministry that it will be increasing to 52 weeks in the future. We understand that it is the intent of Alberta Labour to align with the federal government’s proposed change to the length of parental leave under the federal Employment Insurance Act. Section 138 of Bill 17 provides the ability to amend the length of job protection for parental leave to align with federal legislation, should it be approved.
     
  • The exceptions for 30-minute rest periods will not be removed. (Those are essentially: urgent or unpreventable circumstances or where it is unreasonable). However, the rest period must now be “provided” versus “allowed”. Secondly, the rest period can be taken in two 15-minute increments. This was not expressly mentioned before.
     
  • There are significant restrictions on when a temporary layoff does not count as a termination for the purposes of termination notice/pay requirements.
     
  • Averaging agreements, which are now required in all cases, may only average over 1 to 12 weeks of time. If there is an averaging agreement approved by a majority of non-unionized employees, the legislation clarifies that it binds future hires. They will be required to expire every 2 years. If you are currently operating under a compressed work week, as many employers are, those arrangements will expire within 12 months of when the legislation comes into force and will have to be replaced by an averaging agreement with either the union (if there is one) or a majority of employees.
     
  • There are onerous provisions on group termination of employment which were not mentioned previously. Currently, the legislation is quite toothless and requires only notice to the Director if more than 50 employees are going to be terminated at a single location within a 4 week period. The new Act will require notice to be given to unions and employees as well and has ramped up the notice periods. The legislation only speaks to notice (not pay in lieu of notice). Failure to comply with the enhanced notice requirements would constitute an offence under the Act. This will have a very serious impact on any employers who experience big manpower fluctuations. We understand that construction work will probably be exempt, but maintenance, for example, will not be. The group termination requirements will increase from 4 weeks to the following:

    • For 50 to 99 employees: 8 weeks’ notice
    • For 100 to 299 employees: 12 weeks’ notice
    • For 300 or more employees: 16 weeks’ notice
       
  • Eligibility for all leaves will be 90 days of employment. That includes maternity leave which is currently only available after 12 months of service, as well as the new leaves created in this legislation.
     
  • The legislation does not yet move employment standards appeals to the Labour Relations Board, but instead to an appeal body which is not yet constituted and could at some point in the future be designated as the Labour Relations Board or its members.
     
  • The legislation will prohibit an employer requiring an employee to take banked overtime, vacation, or banked holiday time during the termination notice period.
     
  • The legislation deletes the legislative option of permitting the employment of disabled individuals at less than the minimum wage.
     
  • The legislation greatly expands the investigative and audit abilities of the Ministry. It also permits the Ministry to give a remedy to someone who has not filed a complaint.
     
  • The liability faced by employers will possibly go back 6 months from the claim date rather than 6 months before the order. That makes more sense since the employee should not have to suffer from the Ministry’s slow response, but it expands the period of liability in some cases. It also removes a previous time limit which required that orders must be made no later than 1 year from the date that earnings should have been paid or that employment ended.
     
  • The employment standards changes will be coming into force on January 1, 2018 except for the youth employment provisions which will only come into effect on proclamation and will probably be at a later date to allow consultations on the regulations defining hazardous and light work.

Labour Relations Code Changes

  • The definition of “dependent contractor” will expand beyond the current inclusion of many “direct service providers”. The definition, like a lot of the other provisions, will leave a lot of discretion to the Labour Relations Board (“Board”) to decide. It reads:

“a person, whether or not employed under a contract of employment, and whether or not furnishing tools, vehicles, equipment, machinery, material or any other thing owned by the dependent contractor, who performs work or services for another person for compensation or reward on such terms and conditions that the dependent contractor is in a position of economic dependence on, and under an obligation to perform duties for, that person which more closely resembles the relationship of an employee than that of an independent contractor.”

  • The legislation will allow fishing expeditions by expressly permitting the Board to require employer document production at the front end of the application process before the union has any information about the alleged breach.
     
  • Employers will sometimes be required to prove their innocence in the following complaints:

    • Refusal to employ or discrimination because of union membership or activity
    • Intimidation, dismissal, threats, or penalties to affect union membership
    • Penalizing someone for refusing to do something prohibited by the Act
    • Penalizing someone for refusing struck work
    • Penalizing someone for testifying before the Board.

But trade unions will not have the reverse onus on them for similar prohibitions against them under the Code.

  • The Board may grant a certification of a trade union without majority support if the employer commits unfair labour practices if the Labour Relations Board, in its broad discretion, thinks it will “rectify the act”.
     
  • The Board’s power to order first collective agreement arbitration will be very broad: whenever the Board’s other efforts to resolve the dispute are “unsuccessful and the Board is satisfied that arbitration is otherwise appropriate,” they can force arbitration of an agreement. This first agreement can be as long as an 18-month agreement. A party can request Board intervention after only 90 days from the notice to bargain.
     
  • The essential services provisions’ impact on the expanded group of continuing care, health care labs, and blood supply services could affect some of those employers very soon since, if a mediator was already appointed when the Bill was introduced, the clock will be running from the date of Royal Assent for them to enter into an essential services agreement. That could be within days.
     
  • The power of an arbitrator to relieve against collective agreement time limits is very broad: whenever there are “reasonable grounds” and “the other party would not be unduly prejudiced by the extension”.
     
  • Internal union appeal processes will not be mandated, but they will be encouraged and subject to approval of the Board. Evidence of what happened in them will be part of the adjudication of the duty of fair representation complaint against the union.
     
  • The new certification and revocation rules and the Board’s power to review arbitration decisions, instead of the Court of Queen’s Bench, will come into effect on September 1.
     
  • The dependent contractor and farm/ranch worker provisions will come into effect on January 1, 2018.
     
  • Other provisions will come into effect when the Act receives Royal Assent.

For those interested in more information, we are conducting a webinar on June 6 about the new legislative changes.

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