Bill 86 – Changes to the Canada Labour Code for Workers in the Federal Jurisdiction
This is not intended to be used for legal purposes. It is an information document only. If you require legal advice, contact a labour employment specialist lawyer. Don’t know one? Drop me a line and I can put you in touch with a couple.
Not all of these changes have been implemented as of the time of the writing of this post. Different components are being applied at different times - but they are all coming, and it is anticipated that all will be effective by Dec 31 2019. So you may as well plan now, and be ready to implement as each new regulation is implemented. Follow our blog for updates. We will be keeping this file updated as each change develops.
We can help
If you are a small employer and need help with policies, guidance with implementation and application, but can’t afford a lawyer, feel free to contact me. I can provide many legally vetted policies for your business, as well as make recommendations to third party HR organisations that adequately and affordably fill the gap between your organisation and an expensive law firm. I have many years of experience with the CLC and can often provide directions and assistance which will allow you to avoid the costs and time involved with the legal aspect of the labour code. If I can’t help, I know someone who can.
And now for our main feature.
Posting of the CLC
Employers must provide the most recent version of the CLC within 30 days of changes. Referred to in the legislation as “posting” companies must make a copy of the most current version available to employees
Work shift Schedules:
Employers need to provide 96 hours’ notice of schedules and / or changes to schedules. Employees may refuse work that starts within 96 hours from the time the schedule was provided
Use of Agency (Temp employment service) contractors
It will be illegal to have a different rate of pay for a temporary contractor as opposed to a company employee for the same job activity / descriptions. Additional restrictions apply when it comes to putting barriers (including financial ones) in the process to make it more difficult for a temporary contractor to become an employee.
Contractor or Employee?
Especially relevant in the transportation sector with the growth of Driver Inc (Driver Inc article ) calling someone a contractor, or designating them as non-employees when they are, by the standards established to make these determinations, an employee is now expressly forbidden, and in the event of a challenge the employer will bear the onus of proving an individual is not an employee.
Do you have the criteria the CLC and CRA use to determine contractor versus employee? If so look at those you have classified as contractors and compare to the standard. Consider what you need to change if there is a conflict. This may be in the terms of the contract, the nature of the work, or possibly in the status of the person – if they are deemed to be an employee. Often times a contractor’s view of their status can change upon a significant event – serious injury or dismissal for instance. And then they can challenge the determination.
In a nutshell – same job, same pay. You can’t have differential rates of pay for different employment status (part time versus full time, for instance). This does not eliminate the ability to pay differentially for seniority, quality of work, incentive pays etc;
Temporary help agency employees will also be entitled to the same pay rate as employees of the client in the circumstances described above.
Do an audit of paygrades by job description. Any difference in rate based solely on the criteria above need to be amended. Review paygrades of employees in a job description - are there differences, and if so to what are they attributable?
Review your practices with regards to agency contractors if you use them, including the “temp to perm” component.
3 months of service – 2 weeks’ notice is required,
3 years of service – 3 weeks’ notice;
For each year of service between 3 and 8, the amount of years of service equals the amount of weeks’ notice required.
8 years of service 8 weeks’ notice is required
Group terminations of 50 or more employees have special requirements. If you find yourself in this situation, a lawyer is highly recommended. Notice and / or in lieu payments can be 16 weeks with special provisions of advance reporting to the Minister
Modify your employee handbook and payroll processes accordingly
Where ownership of a lease, or buy-out of an organisation involves a federal workplace, certain obligations will apply. Given the scope of this element, we will not discuss the details here, merely provide this for awareness. Speak with your legal representatives.
Employees become eligible for 6% and 3 weeks after 5 years of service instead of 6.
Employees become eligible for 8% and 4 weeks after 10 years of service, instead of 11.
Train and advise all supervisors. Budget accordingly, and prepare for the operational impact. Be aware, there may be an obligation to adjust vacation qualification as at the anniversary date. If you choose to do this, put it in your HR policies. Check with your legal representative if you choose not to follow this guideline for a ruling.
Statutory Holiday Pay
The 30 day qualification period for stat pay is being eliminated.
Train and advise all supervisors. Budget accordingly
Unpaid 30-minute break during every work period of 5 consecutive hours
Off Duty / Rest Periods between Shifts
Employees must have at least 8 consecutive hours off between work periods or shifts
Employees are entitled to breaks to nurse, or express breast milk, as required by the individual
The unrestricted working age has changed from 17 to 18.
Work Related Expenses
Employees are entitled to reimbursement of reasonable work-related expenses
- The comment “reasonable” in legislation always makes me nervous. I frequently disagree with what the courts and the Labour folks deem to be reasonable. Consider what you will accept as reasonable and document it. A discussion with your HR specialist is recommended before putting this one to writing. I will withhold further comment on this one, but I do see some legal challenges in the future which may push the bounds of reasonable as we currently interpret it.
- Paternity / Maternity -- 6 month qualification period has been eliminated. Employees are entitled upon hiring
- Medical --No qualification period: up to 17 weeks unpaid leave for injury or illness*, organ tissue donation or medical appointments during work hours. Doctor’s note permissible for absences of 3 days or more **
- Personal -- 3 month qualification period: for any illness, injury, family related health, education related (family members under 18), citizenship or prescribed (refer to the legislation or your advisor) 3 days paid.
- Military Reserves -- 3 months qualification period. Maximum 24 months of leave in any 60 month period
- Jury Duty -- No qualification period, no maximum leave.
Update company policies, train supervisors and be prepared for the impact to operational functionality.
* Be aware, if, after 17 weeks the employee is still unable to return to work and as a result the company is considering a change in employment status (such as termination) there are implications and precedents to be considered depending on the nature of the leave. Human Rights legislation overlaps in some areas. Speak with a legal representative before taking any actions that may involve termination if it is a consideration. Additional steps may be required.
** This requirement effectively negates the obligation of the employee to provide a doctor’s note for a single day’s absence. Structure your policies to account for this.