CANADA: Fed Government Shows Pliability: Flexible Work Arrangements (‘FWA’) on Table (Part 1 of 2)

Flexible Work Infographic

As we all know, flexible work is and has been a trending topic worldwide for some time. As a matter of fact, France recently introduced new legislation that gives employees the right to disconnect from business emails after work hours.

Last year, the city of Gothenburg in Sweden announced a trial switch to a 6-hour work day for its public services institutions, such as retirement homes and hospitals.

According to a 2015 survey of 8000 employers and employees from small and medium-sized business, public sector organizations, and multinational companies in 10 countries, the results were significant and positive:

  • 75% of the organizations surveyed now have flexible work policies, allowing employees to vary their hours, and work from home; and
  • 83% out of those organizations have witnessed an increase in productivity; and
  • 61% report a boost in profits; and
  • 58% say their company profile has been positively affected.

In Canada, the federal government pledged1 to amend the Canada Labour Code to allow federally regulated workers to formally request flexible work arrangements (FWAs) from their employers.

To that end, Employment and Social Development Canada has recently commenced a public consultation to explore how to implement the right to requesting FWAs. Please click on the red link above to learn more, and join in.

WHAT IS AN FWA?

The federal government defines FWAs as “alternative arrangements to the traditional working week” and can take on many forms, including both temporary and permanent.

A FWA may allow an employee to alter (a) his or her work schedule, (b) the number of hours worked, (c) the location where work is performed, (d) when he or she takes vacation, or (e) to take leaves to meet family or other personal obligations.

WHAT IS THE PROPOSED RIGHT TO REQUEST AN FWA?

The proposed right to request an FWA would be a statutory right that entitles an employee to formally request an FWA from his or her employer. When the employee submits a formal request, the employer would be required to consider and make a decision about the request within a set time frame.

Should the employer deny the request, it must give reasons for the denial. The right would likely include protections for employees against dismissal or other forms of employer retaliation for exercising this right.

WHAT WILL THE PUBLIC CONSULTATION CONSIDER?

To help craft this legislation, Canada is looking to examples set by Australia, New Zealand, Sweden, the U.K., and certain areas of the U.S., to get an idea of what mechanisms were required in order for the regime to work.

For example, in the U.K., an employee’s right to request is contingent upon a minimum of 6-months employment with the firm, and the employer must respond to the request within 90 days, versus Australia, which requires a response in just 21 days.

In New Zealand, each employee was initially limited to a maximum 1 request per calendar year, however, this has since changed to an unlimited number since 2015.

Other aspects of the statutory regime to consider include:

  • what sort of information should the employee provide in the request;
  • on what grounds may an employer decline a request;
  • should an employee have a right to appeal or complain if she or he thinks the employer unreasonably denied a request; and
  • how should an employee be compensated, or what penalties should be imposed on the employer if the complaint is well-founded.

Part 2 of 2 to follow shortly

Supporting Article Research Sources: Mondaq, McMillan LLP

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