Overhaul of the Canada Labour Code and the implications for federally-regulated employers

Federally-regulated employers, including airlines, telecommunications companies, railways and banks will be affected by the upcoming amendments to the Canada Labour Code (the "Code"). Bill C-86, the Budget Implementation Act, No. 2 ("Bill C-86”) will bring sweeping changes and increased protections to federally-regulated employees to the Code as early as September 1, 2019.

A summary of the significant changes is provided below.

Leaves

New leaves

Bill C-86 introduces four new types of leaves, the effective dates for such amendments have not yet been determined.

1. Court or jury duty leave

Employees will be entitled to a leave of absence to attend court to act as a witness in a proceeding, act as a juror in a proceeding, or participate in a jury selection process. The Code does not presently allow for a leave related to court or jury duties.

2. Family violence leave

Every employee who is a victim of family violence will be entitled to 10 days of Family Violence Leave. If the employee has continuously worked for the employer for three months, the employee will be entitled to paid leave for the first five days of the leave.

3. Personal leave

Every employee will be entitled to five days of Personal Leave per calendar year for the following:

• treating the employee's illness or injury;
• carrying out responsibilities related to the health or care of any of the employee's family members;
• carrying out responsibilities related to the education of any of the employee's family members who are less than 18 years of age;
• addressing any urgent matter concerning the employee or the employee's family members;
• attending the employee's citizenship ceremony under the Citizen Act; and
• any other reason prescribed by regulation.

If the employee has continuously worked for the employer for three months, the employee will be entitled to paid leave for the first three days of the leave.

4. Traditional Aboriginal practices leave

Every employee who is an Aboriginal person (meaning Indian, Inuit or Métis) and who has been continuously employed for three months will be entitled to a leave of up to five days in every calendar year, in order to engage in traditional Aboriginal practices, including hunting, fishing, harvesting and any practice prescribed by regulation.

Changes to existing leaves

Bill C-86 also amends the following existing leaves under the Code:

1. Shared parental leave

Where two parents who are employees share Parental Leave in respect of the same birth or adoption, the aggregate amount of Parental Leave will increase from 63 weeks to 71 weeks (the maximum Parental Leave shared between both parents). The aggregate amount of Maternity Leave and Parental Leave that may be taken by two employees in respect of the same birth will increase from 78 weeks to 86 weeks.

At this time, the date that the amendment will come into force is not yet known.

2. Medical leave

"Sick Leave" is renamed "Medical Leave" and the amendment removes the current three month continuous service requirement for Sick Leave/Medical Leave eligibility. Employees will be entitled to a Medical Leave of up to 17 weeks as a result of personal illness or injury, organ or tissue donation, or medical appointments during working hours.

This amendment will come into effect on September 1, 2019.

3. Minimum length of service requirements eliminated for certain leaves

Bill C-86 will eliminate the current six month minimum length of continuous service requirement in order to be entitled to Maternity Leave, Parental Leave, Leave Related to Critical Illness, or Leave Related to Death or Disappearance of a Child.

This amendment will come into effect on September 1, 2019.

Equal pay

Employees will be entitled to pay equity between full-time employees that perform substantially the same kind of work as other employees with a different employment status (for example, part-time, casual, or seasonal employees). The amendments will allow exceptions for differential pay between employees of different status due to:

• seniority;
• merit;
• the quantity or quality of each employee's production; or
• any other criteria that may be prescribed by regulation.

An employer is prohibited from reducing an employee's rate of wages in order to comply.

At this time, the date that the amendment will come into force is not yet known.

Rest periods and breaks

Employees are currently entitled to certain rest periods and breaks. As of September 1, 2019, employees will be entitled to:

• an unpaid break of at least 30 minutes 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;
• a rest period of at least eight consecutive hours between work periods or shifts; and
• medical or nursing breaks that are necessary for medical reasons or for nursing or expressing breast milk.

Vacation entitlements

Long-term employees will be entitled to more vacation days as of September 1, 2019:

• two weeks' vacation (or 4% vacation pay) after of one year of continuous employment with the same employer;
• three weeks' vacation (or 6% vacation pay) after five years of continuous employment with the same employer; and
• four weeks' vacation (or 8% vacation pay) after 10 years of employment with the same employer.

Statutory holiday pay

Currently, the Code requires employees to work for an employer for 30 days before the employee will be eligible for general statutory holiday pay. As of September 1, 2019, there will no longer be a 30-day waiting period for statutory holiday pay.

Termination

Notice of individual terminations

Currently, the Code entitles employees to two weeks' required notice by the employer for termination any time after the employee has been employed continuously with the employer for more than three months. The Bill C-86 amendments will entitle employees to the following notice periods:

• 2 weeks' notice after 3 months of continuous employment;
• 3 weeks' notice after 3 years of continuous employment;
• 4 weeks' notice after 4 years of continuous employment;
• 5 weeks' notice after 5 years of continuous employment;
• 6 weeks' notice after 6 years of continuous employment;
• 7 weeks' notice after 7 years of continuous employment; and
• 8 weeks' notice after 8 years of continuous employment.

The above notice periods are not applicable to employees who are terminated for just cause or as part of a group termination of employment. At this time, the date that the amendment will come into force is not yet known.

Group terminations

Specific provisions govern group terminations, which are terminations of 50 or more employees either simultaneously or within any four week period.

The amendments (effective date not yet known) will implement changes that will supplement the current requirement to give 16 weeks' written notice to the Minister of Labour. In addition to giving the Minister of Labour 16 weeks' written notice, an employer must provide immediate notification of the group termination to any trade union representing the employees affected by the group termination, or if the employees are not represented by a trade union, the group of affected employees must be given notice immediately.

Each employee whose employment is terminated during the 16 week group notice period is entitled to individual notice of at least eight weeks . The eight weeks' notice can be provided by way of written notice, pay in lieu of notice, or any combination of notice and pay in lieu of notice.

Unjust dismissal

Bill C-86 will expand the Canadian Industrial Relation Board's (the "CIRB") powers with respect to unjust dismissal complaints, and will provide the CIRB the power to summarily dismiss unjust dismissal complaints. The CIRB will also be given the power to reject a complaint, in whole or in part, if:

• the complaint is not within its jurisdiction;
• the complaint is frivolous, vexatious or not made in good faith;
• the complaint has been settled in writing between the employer and the employee;
• there are other means available to the employee to resolve the subject matter of the complaint that the CIRB considers should be pursued;
• the subject matter of the complaint has been adequately dealt with through recourse obtained before a court, tribunal, arbitrator or adjudicator;
• in respect of a complaint made by an employee who is subject to a collective agreement, the collective agreement covers the subject matter of the complaint and provides a third party dispute resolution process; or
• if the complaint was already suspended by the CIRB and the measures specified in the notice were not taken within the specified time period.

At this time, the date that the amendment will come into force is not yet known.

Takeaway

The upcoming amendments will result in greater obligations for federally-regulated employers. Although the first of the amendments will not come into force until September 1, 2019, employers should review their current policies and practices to ensure they will be compliant with the changes. This article provides a summary of the significant amendments, however, it does not canvass every amendment.