In what will have a considerable effect on federally-regulated employers, Bill C-86 underwent its third reading in the Senate on December 10, 2018. The amendments to a number of provisions of the Canada Labour Code (the “Code”) proposed through Bill C-86 alter the minimum labour standards for federally-regulated employers including, but not limited to:
Breaks, Scheduling and Hours of Work
- 30-minute unpaid breaks would be required during every period of five consecutive hours of work. If the employer requires the employee to be at their disposal during the break period, the employee must be paid for the break.
- Every employee who is nursing is entitled to and shall be granted any unpaid nursing breaks necessary for them to nurse or to express breast milk.
- Every employee is entitled to and shall be granted any unpaid breaks that are necessary for medical reasons. On written request by the employer, the employee must provide a certificate issued by a health care practitioner setting out the length and frequency of the breaks needed for medical reasons.
- Every employee is entitled to and shall be granted a rest period of at least eight consecutive hours between work periods or shifts. An exception to this would be where it is necessary for the employee to work in order to deal with a situation that the employer could not have reasonably foreseen and that presents (a) threat to the life, health or safety of any person; (b) threat of damage to or loss of property; or (c) threat of serious interference with the ordinary working of the employer’s industrial establishment.
- Employers will be obliged to give employees written notice of their work schedules 96 hours before the start of their first work periods or shifts, otherwise employees can refuse to work any shift in their schedule that starts within 96 hours from the time the schedule is provided to them. Similar exceptions exist as listed above and this new requirement will not apply to employees governed by a collective agreement that specifies an alternate time frame for providing the work schedule or which provides that this section does not apply to those employees.
- Bill C-86 would prohibit an employer from paying employees differently for performing the same work on the basis of “employment status” if:
- they work in the same industrial establishment;they perform substantially the same kind of work;
- they perform substantially the same kind of work;
- the performance of that work requires substantially the same skill, effort and responsibility;
- their work is performed under similar working conditions; and
- any other factor that may be prescribed by regulation is present.
- However, exceptions exist if the difference in employee’s wages is due to a system based on seniority, merit, or the quantity or quality of each employee’s production. There are additional obligations for employers under these amendments including having to conduct a review of the employee’s rate of wages and provide a written response within 90 days of receiving the employee’s request for review. Employers cannot retaliate against employees who make such a request and employers also cannot reduce any employee’s rate of wages in order to comply with the changes to the legislation.
- Although not specifically a part of the amendments to the Code, it is worth mentioning that Bill C-86 creates a federal Pay Equity Act to establish a proactive process for the achievement of pay equity by the redressing of systemic gender-based discrimination. A Pay Equity Commissioner will be established in order to administer and enforce this new Act. Specifically, the Commissioner will have the power to facilitate the resolution of disputes, conduct compliance audits, investigate disagreements, objections and complaints, make orders, and impose administrative monetary penalties for violations of the Pay Equity Act.
- The number of weeks of paid vacation will be increased. For example, employees will be entitled to at least four weeks if they have completed at least five consecutive years of employment with the same employer.
- Vacation pay will be increased for longer service. For example, if an employee has completed at least 10 consecutive years of employment with the same employer, they would be entitled to vacation pay equal to 8% of their wages during the year of employment in respect of which they are entitled to the vacation.
- The amendments eliminate the 30-day period of employment presently required for an employee to be entitled to holiday pay for a general holiday.
Leaves of Absence
- The amendments remove the existing service requirement that an employee complete 6 months of continuous service before being entitled to various leaves.
- Employees will have a new period of leave to act as witnesses or jurors in a judicial proceeding or to participate in a jury selection process.
- The three-day leave of absence for family obligations will become a five-day personal leave to which every employee shall be entitled, without having to have completed three months of employment. Such leaves have been expanded and employees may use these days for personal illness, responsibilities related to health care or care of family members, education-related responsibilities of family members under 18, addressing any urgent general matters concerning themselves or family members, attending their own citizenship ceremony, and any other reason prescribed by regulation.
- Employees who have completed three months of employment will be paid for the first five days of leave if they are victims of family violence.
- Medical leave will be expanded to include organ or tissue donation and medical appointments during working hours in addition to personal illness or injury.
Reimbursement of Work-Related Expenses
- Employees will now be entitled to be reimbursed by the employer for reasonable work-related expenses. However, this would not apply to expenses that are ineligible under any regulation made under the applicable division in the Code nor would it apply to expenses that the employee is required to pay in accordance with any written agreement between the employee and the employer, or any collective agreement where applicable.
The Code will now have a notice regime more similar to those under provincial employment standards legislation as opposed to the two-week notice of termination of employment or payment of two weeks’ wages in lieu thereof, where employees have completed three months of continuous employment. Bill C-86 proposes that the length of the notice period would be determined in the following manner:
- two weeks, if the employee has completed at least three consecutive months of continuous employment with the employer;
- three weeks, if the employee has completed at least three consecutive years of continuous employment with the employer;
- four weeks, if the employee has completed at least four consecutive years of continuous employment with the employer;
- five weeks, if the employee has completed at least five consecutive years of continuous employment with the employer;
- six weeks, if the employee has completed at least six consecutive years of continuous employment with the employer;
- seven weeks, if the employee has completed at least seven consecutive years of continuous employment with the employer; and
- eight weeks, if the employee has completed at least eight consecutive years of continuous employment with the employer.
Generally, for employees whose employment is terminated in a group termination of employment, there will now be an additional individual notice period of 8 weeks for such “redundant employees” as defined in the Code.
As mentioned previously, these numerous changes will undoubtedly affect the labour and employment practices of federally-regulated employers. We will provide updates as the Bill progresses but we urge affected employers to begin preparing for these changes now.