Apr 9

Bill C-86 Updates the Federal Employment Standards Regime, Toronto Employment Lawyer

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Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures (the “Bill”), received Royal Assent on December 13, 2018.   Through Bill C-86, the federal government amended several provisions of Part III of the Canada Labour Code (the “Code”) prescribing minimum labour standards for federally-regulated employers, and also introduced the new Pay Equity Act (which will the subject of a subsequent blog post).

The Bill will have a major effect on federally-regulated employers, who will need to assess whether their current policies and procedures need to be amended to ensure compliance with the Bill’s important amendments.  Below, we will identify those important amendments:

Hours of Work

Effective Sept 1, 2019:

– 30-minute unpaid breaks will 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 8 consecutive hours between work periods or shifts. There is an exception where it is necessary for the employee to work 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.

Equal Treatment

Bill C-86 will prohibit an employer from paying employees differently for performing the same work based on “employment status” if:

a. they work in the same industrial establishment;

b. they perform substantially the same kind of work;

c. the performance of that work requires substantially the same skill, effort and responsibility;

d. their work is performed under similar working conditions; and

e. 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 to 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 to comply with the changes to the legislation.

Although not specifically a part of the amendments to the Code, Bill C-86 also creates a federal Pay Equity Act to establish a process for the achievement of pay equity by the redressing of systemic gender-based discrimination.

Vacation Pay

Effective September 1, 2019:

– The number of weeks of paid vacation will be increased as follows:

– Two weeks for employees who have completed one year of employment;

– Three weeks for employees who have completed five years of employment; and

– Four weeks for employees who have completed ten years of employment.

 – 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

Effective September 1, 2019:

– 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 3-day leave of absence for family obligations will become a 5-day personal leave to which every employee shall be entitled, without having to complete 3 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 3 months of employment will be paid for the first 5 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 does 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.

Terminations

At the present time, an employer must give individual employees a 2-week notice of termination of their employment or pay them 2 weeks’ wages in lieu thereof, where they have completed 3 months of continuous employment.  Where a position becomes redundant and the employer is bound by a collective agreement that authorizes an employee to displace another employee on the basis of seniority, the employer must also give a 2-week notice of termination to the trade union and the employee or pay the employee 2 weeks’ wages in lieu of notice.

Bill C-86 stipulates that an employer is permitted to give a terminated employee written notice or pay in lieu of notice, or a combination of notice and pay in lieu of notice, and to give a written notice of redundancy of the position concerned to the trade union, when the employer is bound by a collective agreement that authorizes an employee to displace another employee on the basis of seniority.

In all cases, the length of the notice period would be determined in the following manner:

– Two weeks for employees who have completed three months of employment;

– Three weeks for employees who have completed three years of employment;

– Four weeks for employees who have completed four years of employment;

– Five weeks for employees who have completed five years of employment;

– Six weeks for employees who have completed six years of employment;

– Seven weeks for employees who have completed seven years of employment; and

– Eight weeks for employees who have completed eight years of employment.

The effective date is to be determined.

Conclusion

Many of the amendments to the Code will not come into force prior to September 1, 2019, at the earliest, including those pertaining to group termination notices, equal pay for equal work, vacation and holiday pay, unpaid leave for pregnant or nursing women, work scheduling, and shift breaks.

Other changes to the Code may come sooner, or possibly later, as they are to come into force at dates fixed by order of the Governor in Council, including aggregate parental leave entitlements, individual termination notices, reimbursement of work-related expenses obligations, and personal leaves.

Overall, these legislative changes will surely affect the labour and employment practices of federally-regulated employers.  We encourage affected employers to begin preparing for these changes now by conducting a full review of their current policies and procedures.

About the Author: Miguel Mangalindan is a Senior Associate Lawyer at Monkhouse Law where he practices Employment, Human Rights and Disability Insurance Law.

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Monkhouse Law

Toronto Employment Lawyers at Monkhouse Law
Employment Lawyers at Monkhouse Law specialize in Employment Law, Human Rights Law, and Disability Insurance Law. We serve employees, independent contractors and employers, and strive to get optimal results for every client through skilled advocacy and research on each matter. We have successfully represented clients before all levels of court in Ontario, including the Superior Court, the Divisional Appeals Court, and the Court of Appeal as well as the Supreme Court of Canada.
Monkhouse Law

Monkhouse Law

Employment Lawyers at Monkhouse Law specialize in Employment Law, Human Rights Law, and Disability Insurance Law. We serve employees, independent contractors and employers, and strive to get optimal results for every client through skilled advocacy and research on each matter. We have successfully represented clients before all levels of court in Ontario, including the Superior Court, the Divisional Appeals Court, and the Court of Appeal as well as the Supreme Court of Canada.