Bill C-86 Changes to Canada Labour Code

Having received Royal Assent in December of 2018, Bill C-86, or A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures brought several important changes to the Canada Labour Code (the Code) on September 1, 2019. The Bill has also introduced a host of other changes that will be implemented at a date as yet to be determined. These changes are boon for workers and are worth recognizing as a positive step forward in advancing workers’ rights.

Key changes that come into effect on September 1, 2019 include:

Medical Leave: up to 17 weeks of medical leave as a result of (a) personal illness or injury; (b) organ or tissue donation; or (c) medical appointments during working hours.[1]

Leave to Care for Critically Ill Adult: Every employee who is a family member of a critically ill adult is entitled to and is granted a leave of absence of up to 17 weeks in order to care for or support that adult if a health care practitioner issues a certificate.[2]

Leave to Care or Seriously Ill Family: Employees are entitled to a leave of absence from of up to 28 weeks to provide care or support to a family member if a health care practitioner issues a certificate stating that the family member has a serious medical condition with a significant risk of death within 26 weeks.[3]

Court or Jury Duty Leave: an unpaid leave of indefinite duration to attend court as a witness, act as juror or participate in jury selection process.[4]

Hours of Work: New employee entitlements, including:

·       unpaid breaks of 30 minutes for every 5 hours of work. The breaks are paid if the employer requires the employee to be at their disposal during the 30-minute period[5];

·       Subject to emergency postponement or cancellation, a minimum rest period of 8 hours between shifts[6]; and

·       unpaid breaks for breastfeeding, pumping breastmilk or for medical reasons (an employee must provide evidence to support requests for unpaid breaks for medical reasons).[7]

Vacation Pay: The length of continuous service required for three weeks’ paid vacation reduced from 6 to 5 years. After 5 years of employment, an employee will be entitled to 3 weeks’ vacation and the associated vacation pay will increase to 4 weeks after 10 years of employment.[8]

Unjust Dismissals: Bill C-86 will impact the complaint mechanism in place for complaints of unjust dismissal. The Canada Industrial Relations Board (the “Board”) will have the power to reject complaints that:

·       are not within its jurisdiction;

·       are frivolous, vexatious or not made in good faith;

·       have been settled between the employer and the employee;

·       can be resolved by other means that the Board considers should be pursued;

·       have been adequately dealt with by a court, tribunal, arbitrator or adjudicator; or

·       have been suspended and the employee failed to comply with measures specified by the Board within the specific time period.

Equal Pay for Equal Work: a requirement that part-time, casual, temporary, seasonal, and full-time employees receive equal pay for equal work under certain circumstances, as well as the right to request a review of wages.[9]

Reverse Onus: a requirement that an employer have the onus of establishing that an individual is not their employee in event of a complaint of a breach of Part III of the Code;

Minimum age: an increase of the minimum age of employment from 17 to 18 years of age;

Written employment statements: a requirement to provide employees with a written statement containing information relating to their employment that is prescribed by regulation, as well as any updates, within a specified time-period;

Medical documents: leaves of absences may be supported by certificates from a broader class of “health care practitioners” rather than “qualified medical practitioners”; and

Temporary Help Agencies: new requirements and liabilities for employers who use temporary help agencies including equal pay for temporary help agency employees where they are performing substantially the same kind of work as an employee of the employer, as well as limitations on agencies including a prohibition on preventing employees from establishing an employment relationship with a client organization.

Key changes that come into effect as yet to be determined date include:

Family Violence Leave: Division 15 of Part 4 amends the Canada Labour Code to provide five days of paid leave for victims of family violence.

Personal Responsibility Leave: up to 5 days (first 3 days are paid) of leave for personal leave.

Parental Sharing Benefit: Bill C-86 will also introduce a parental sharing benefit to increase the amount of parental leave by up to 8 weeks if that leave is divided among two parents[10].

Introduction of a Pay Equity Act: Bill C-86, Division 14, introduces a new framework for pay equity. The Pay Equity Act (the “PEA”) will apply to federally regulated employers with more than 10 employees, including the federal private and public sectors, the federal public service, Parliamentary workplaces and Ministers’ offices. The PEA requires affected employers to evaluate their compensation practices by establishing and maintaining a pay equity plan.

Notice of Schedule: Employers will need to provide a minimum of 96 hours advance written notice of work schedules. For unionized employees the terms of the collective agreement prevail.  The implementation date of this change has yet to be fixed.[11]

Individual Termination: The termination of employment provisions of the Code (which provide for 2 weeks’ notice of termination) will be replaced with a graduated notice system (akin to the statutory notice provisions of Ontario’s Employment Standards Act). Depending on the number of years of continuous service, employees who have completed at least 3 months of service will be entitled to between 2 and 8 weeks written notice of termination, pay in lieu of notice at their regular rate of wages for their regular hours of work, or a combination of these two options.

Group Termination: Under the Code, employers must give notice of individual termination, as well as group termination in the event that 50 or more employees from a single industrial establishment are dismissed within a 4-week period.  Bill C-86 will supplement the existing requirement to provide up to 16 weeks of written notice to the Minister and employees (and to a trade union). There will also be a requirement to provide affected employees at least 8 weeks’ notice, pay in lieu of notice, or a combination thereof.[12]

Conclusion

Bill C-86 brought many changes to the Code and will continue to bring changes. Unions should become aware of their new rights and obligations and be vigilant in preparing for the changes that are coming. Informing membership of the fresh rights is a key step to defending these rights.

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[1] S. 239(1).

[2] S. 206.4(2.1)

[3] S. 206.3(2)

[4] S. 206.9

[5] S. 169.1(1)

[6] S. 169.2(1)

[7] S. 181.2

[8] S. 184

[9] S. 416, Division 14, Part 4.

[10] S. 12(4.01).

[11] S. 173.01(1)

[12] S. 478(2), Bill C-86, amending s. 211 of the Code.