Federally-regulated employers should prepare themselves for the massive changes to the Canada Labour Code (“CLC”) coming into force on September 1, 2019. Federally-regulated employers primarily include those conducting business in banking, federal Crown corporations, many First Nations activities, and those operating in industries that cross provincial and/or national borders (such as railways, and road, marine, and air transport; telephone and cable systems; and radio and television broadcasting). Further reforms are expected to continue to be implemented gradually throughout the rest of the year and 2020, pending the outcome of the October federal election.
Earlier this year, Employment and Social Development Canada announced that it established an independent Expert Panel to study, consult, and bring forward recommendations to the Minister of Employment, Workforce Development and Labour, on the issues of: federal minimum wage, labour standards protections for non-standard workers, the “right to disconnect” outside of work hours, collective voice for non-unionized workers, and access and portability of benefits. Pending the recommendations of the Expert Panel, there may be even more reforms to come in the near future.
Amendments Effective September 1, 2019
Amendments to Part III of the CLC concerning compliance and enforcement, individual and group terminations, temporary help agencies, equal pay for equal work and more, have already been passed and are set to take effect on or after September 1, 2019.
The following chart outlines the changes that will come into force September 1, 2019:
Hours of Work
Breaks & Rest Periods
Employees are entitled to:
- A 30-minute unpaid break for every five consecutive hours of work. If an employee is required to be available during the break, the break must be paid
- Breaks may be postponed or cancelled in an emergency
- Unpaid breaks that are necessary for medical reasons (a medical certificate may be requested by the employer); or for an employee who is nursing (to nurse or to express breast milk)
Employees are entitled to:
- A rest period of at least eight hours between work periods/shifts, except in the case of emergency
Flexible Work Arrangements
After six consecutive months of continuous employment, employees may make a written request to the employer to change:
- the number of work hours;
- location of work; and
- other terms and conditions that apply to the employee and that are prescribed by regulation
Employers must respond to such requests in writing within 30 days. Employers can grant the request in whole or in part, or refuse the request on the basis that:
- the change would create additional costs that would be a burden on the employer;
- the change would have a detrimental impact on the quality or quantity of work, or the ability to meet customer demand or meet any other aspect of performance;
- the employer is unable to reorganize work amongst existing employees, or unable to recruit additional employees, to accommodate the requested change;
- the change would result in there being insufficient work for the employee; and/or
- any other ground prescribed by regulation
Modified Work Schedules
The CLC will allow for the establishment (or modification or cancellation) of modified work schedules where the hours of work exceed the standard hours of work set out in the CLC.
Notice of Schedule
- Employers must provide a minimum of 96 hours’ written notice before implementing a schedule
- Where less than 96 hours’ notice is provided, employees have a right to refuse any shift within 96 hours of receiving the notice
- Employers may provide less than 96 hours’ notice:
- In the case of an emergency;
- Where a collective agreement states otherwise; or
- Where the employee has requested the change in schedule under a Flexible Work Arrangement
Notice of Shift Change
Employers must provide at least 24 hours’ notice in writing of an employee’s shift change, subject to certain exceptions including emergencies.
Overtime: Right to Refuse
- Employees may refuse to work overtime if they must fulfill a family responsibility, so long as they have taken reasonable steps to carry out that family responsibility by other means
- Employees may not refuse overtime if it is necessary to deal with an unforeseen emergency
Overtime: Time Off in Lieu
- Upon agreement between the employee and employer, an employee may take time off instead of receiving pay for overtime hours
- Employees may be granted not less than one and a half hours of paid time off for each overtime hour worked
- Employers are required to keep a record of any written agreement to substitute overtime hours with time off in lieu
- If the employee does not take the time off in lieu within three months after the end of the pay period in which the overtime was worked (or up to 12 months if agreed to by the employee and employer), the employer must pay out the remainder as overtime pay
- If an employee is terminated with banked time off in lieu, the employer will have to pay out the banked time upon termination
Leaves of Absence
- Increased from three days to five days (may be taken from date of death up to six weeks after the day of the funeral, burial, or memorial service, whichever is latest)
- The first three days for employees with three consecutive months of continuous employment are paid
- May be taken in one or two periods
Court or Jury Duty Leave
New unpaid leave of indefinite duration to attend court as a witness or juror, or to participate in jury selection.
Leave to Care for a Critically Ill Child or Adult
Employees are no longer required to complete six consecutive months of continuous employment in order to be entitled to leave to care for a critically ill child, or leave to care for a critically ill adult.
Leave to Care for a Critically Ill Child (in force December 2017)
- Duration remains up to 37 weeks
- Allows for leave to be taken by a family member (not only the child’s parent)
Leave to Care for a Critically Ill Adult (in force December 2017)
- New leave of up to 17 weeks
Leave for Death or Disappearance of a Child
Employees are no longer required to complete six consecutive months of continuous employment in order to be entitled to leave for the death or disappearance of a child.
Maternity and Parental Leave
Employees are no longer required to complete six consecutive months of continuous employment in order to be entitled to maternity or parental leave.
Maternity Leave (in force December 2017)
- Unpaid maternity leave is extended up to 17 weeks; pregnant employees can begin maternity leave up to 13 weeks prior to the baby’s due date
Parental Leave (in force December 2017)
- Unpaid leave to care for an employee’s new born or newly adopted child is increased to 63 weeks
Aggregate of Maternity and Parental Leave (in force December 2017)
The aggregate amount of unpaid maternity and parental leave that can be taken by one or two employees for the same birth or new adoption is increased to 78 weeks
- Replaces sick leave provisions
- Duration of up to 17 weeks
- Granted as a result of:
- Personal illness or injury;
- Organ donation; or
- Medical appointments during work hours
- If the leave of absence is three days or longer, the employer may require the employee to provide a certificate issued by a health care practitioner certifying that the employee was incapable of working for the period of time they were absent from work
- Up to five days’ per calendar year, with the first three days paid for employees with three consecutive months of continuous employment
- Family Responsibility Leave is replaced
- Will be granted for the purposes of:
- Treating their illness or injury;
- Carrying out responsibilities related to the health or care of any of their family members;
- Carrying out responsibilities related to the education of any of their family members who are under 18 years old;
- Addressing any urgent matter concerning themselves or their family members;
- Attending their citizenship ceremony under the Citizenship Act; and
- Any other reason prescribed by regulation
Leave for Traditional Aboriginal Practices
Aboriginal employees with three months of continuous employment are entitled to take up to five unpaid days in each calendar year.
Victims of Family Violence Leave
The first five days of leave for victims of family violence shall be paid, for employees who have completed three months of continuous employment.
Vacation and Holiday Pay
- The exclusion for general holiday pay for holidays occurring within the first 30 days of an employee’s employment will be removed
- Holiday pay must be equal to at least 1/20th of the employee’s wages (not including overtime earnings) for the four-week period immediately preceding the week in which the holiday occurs
Substitution of General Holidays
- For employees subjected to a collective agreement, an employer may substitute another day for a general holiday, if the substitution is agreed to in writing between the employer and trade union
- For non-unionized employees, an employer may substitute any other day for a general holiday, where the substitution has been:
- Approved by the individual employee, in writing; or
- Approved by at least 70% of employees, if the substitution will affect more than one employee
Vacation pay entitlements will be increased as follows:
|Continuous Employment||Vacation Entitlement|
|1 year||2 weeks (or 4% vacation pay)|
|5 years||3 weeks (or 6% vacation pay)|
|10 years||4 weeks (or 8% vacation pay)|
- Annual vacation may be taken in more than one period
- Vacation may be postponed or interrupted to take a leave of absence or time off on account of injury or illness, and resume vacation at a later date
Deemed Continuity of Employment
Continuity of Employment of a Work, Undertaking or Business
Employment will be deemed continuous in the following circumstances:
- Transfers between two federally-regulated employers
- Where a work, undertaking or business becomes federally-regulated
- Where, if through a contract re-tendering process, a second employer becomes responsible for carrying out a federal work, undertaking or business, previously carried out by the previous contract holder
Transfer provisions will not apply if the first day of employment with the new employer is more than 13 weeks after the earlier of (1) the last day of work with the previous employer, or (2) the transfer of the federal work, undertaking or business.
These sweeping changes represent the most drastic overhaul to the federal labour and employment system in decades, and are decidedly preferential to employees. Moreover, there are further numerous amendments to the CLC that have yet to receive a coming-into-force date, in addition to legislation addressing pay equity and workplace harassment and violence that is pending implementation.
Affected employers must be aware of these modifications to employment standards, and where necessary, prepare their workplaces to ensure compliance.