Canada Labour Code Amendments

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You may be aware that just a couple of months ago, specifically on June 22, 2017, Bill C-44, the Budget Implementation Act, 2017, No.1 received Royal Assent.

This Act makes a number of changes to the Canada Labour Code (the “Code”) that will impact federally regulated employers, both unionized and non-unionized.

Please note that a date has not yet been set for when these changes will become law.

A ‘GENERAL GUIDELINE’ TO THE PROPOSED KEY AMENDMENTS:

Administrative Monetary Penalties (Added to the Code)

  • Employers can now be penalized for up to and including $250,000 under this section, and any officer, director, agent, or any other person with managerial or supervisory roles can be held liable for the penalty.
  • The specific Code provisions to which these penalties apply, and therefore the specific penalties will be identified in future Regulations.
  • The deadline for issuing a Notice of Violation is 2 years from the day on which the subject-matter of the violation arose.

Complaints Relating to Reprisals (Added to the Code)

  • Employees will be able to file a complaint with the Canada Industrial Relations Board (the “CIRB”) if they believe that the employer has taken reprisals against them for making a complaint pursuant to Part III of the Code, providing information to the Minister, the CIRB, or an inspector in exercising their duties under Part III of the Code, OR testifying in a proceeding or inquiry pursuant to Part III of the Code.
  • Such reprisals include, among other things: dismissing, suspending, laying off or demoting the employee, or imposing a monetary burden or penalty on the employee.
  • The time period for filing a complaint of retaliation is 90 days.

Inspector Orders

  • The authority of inspectors has been expanded. Inspectors will now issue compliance orders if they find an employer has not complied with Code provisions on standard hours, wages, vacations, and holidays.

Internal Audit

  • The Minister of Labour could order an employer to conduct an internal audit of its books, payrolls, and other records to determine whether the employer is in compliance with the Code provisions on standard hours, wages, vacations, and holidays.
  • The Minister may order the audit report to contain any data that the Minister deems appropriate.
  • Once the audit is complete, employers must submit the audit report to the Minister.

Unjust Dismissal

  • Unjust dismissal complaints that are not settled will now be referred to the CIRB, instead of an adjudicator for determination.

Unpaid Leaves of Absence:

Employees with a Newborn or Adopted Child

  • Female employees will be permitted to begin their maternity leave up to 13 weeks before their due date, a 2week increase from the current 11 weeks.
  • Employees will be entitled to take an unpaid leave of absence of up to 63 weeks to care for newborn or adopted children, a big jump from the current 37 weeks.
  • The combined total of maternity and parental leave that one or two employees can take for the same birth or adoption will increase to 78 weeks, a considerable increase from the current 52 weeks.
  • The combined total of parental leave that two employees can take for the same birth or adoption will increase to 63 weeks from the current 37 weeks.

Employees with a Critically Ill Child or Family Member

  • The definition of those eligible to take a leave of absence to care for a critically ill child will be expanded beyond a parent to a family member of a critically ill child. The eligibility period (6 months of continuous employment) and length of absence (37 weeks) will remain the same.
  • Employees who have completed 6 months of continuous employment will be eligible for an unpaid leave of absence of up to 17 weeks to care for or support a critically ill adult family member.

Unpaid Wages Recovery

  • The period for recovering unpaid wages will be extended from 12 to 24 months.

Again, please keep in mind that a date has not yet been set for when these changes will become law.

Supporting Article Research Sources: Mondaq.com, Lawson Lundell LLP

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Canada and U.S. Enjoy Competitive Workforce

 

 

 

 

 

Innovation Minister celebrates free flow of knowledge and skills on both sides of the border

As we know, Canada and the U.S. have designed one of the most enduring, integrated, peaceful, and mutually beneficial economic relationships in the world—one that results in shared prosperity and better living standards for the middle class in each country.

Behind each North American innovation are the talents and creativity of persons from each side of the border. That includes the highly skilled Americans and Canadians who grow our food, build our cars, and turn new technologies into products and services that are sold worldwide. Each country enjoys the advantage of having a highly competent workforce that can compete globally based on advanced and specialized skills.

That was the message delivered by the Honourable Navdeep Bains, Minister of Innovation, Science and Economic Development, at the Western Pathways Conference earlier this week in Denver. This conference, which ends May 13th, is a gathering of U.S. business, government, and education leaders. The conference targeted ways to prepare young adults for jobs of the future.

As part of the Innovation and Skills Plan set out in Budget 2017, the Government of Canada is moving forward with targeted investments to make sure that skills training begins early and continues throughout the careers of Canadians. These investments include:

  • $50 million over 2 years to support learning opportunities in computer coding and digital skills for school-aged children;
  • $221 million over 5 years to create 10,000 work-integrated learning placements that enable university and college students to enter the workforce; and
  • support enabling mid-career workers who wish to pursue post-secondary education to make qualifying for student loans and grants a smoother process.

A FEW QUICK STATS

  • Trade between the U.S. and Canada reached nearly $700 billion in 2015, representing $2 billion of goods and services crossing the border daily.
  • Since the Canada-U.S. Free Trade Agreement came into force in 1989, Canada’s two-way trade in goods and services with the United States has more than tripled.
  • Nearly 9 million American jobs depend on trade and investment with Canada.
  • Many U.S. states count Canada as their top trading partner.

 

Supporting Article Research Source: Government of Canada

Canada: More Changes Coming to the TFW Program

 

The federal government is looking to enhance the Temporary Foreign Worker Program (‘TFWP’) by bringing in new requirements for those employers looking to hire foreign workers.

Employers will be required to do more to recruit Canadians, mainly those who are typically under-represented in the workforce, such as youth, newcomers, women, Indigenous people, and people with disabilities.

The government intends to work with industry sectors that heavily use the program to create Canadian workforce development strategies in partnership with employers, organized labour, and different stakeholders.

“The changes we are making to the Temporary Foreign Worker Program will help ensure that Canadians have the first opportunity at available jobs, that vulnerable workers are protected, and that the Canadian economy can continue to grow and thrive,” said Patty Hajdu, Minister of Employment, Workforce Development, and Labour.

To meet its commitment to better protect vulnerable foreign workers, the government will also increase on-site inspections of places of work that employ foreign workers. The government will also work with community organizations devoted to protecting vulnerable foreign workers to make certain they are informed of their rights and protections once arriving in Canada.

Background

The Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities tabled its report, Temporary Foreign Worker Program, which outlined 21 recommendations last September.

At that point, the government took early action to respond to the report by:

  • Preserving the cap on the share of low-wage temporary foreign workers at 20% for employers that accessed the program prior to June 20, 2014, and at 10% for brand new users of the program;
  • Extending the cap for seasonal industries for as much as 180 days up to December 31, 2017;
  • Doing away with the 4-year cumulative duration “4-in, 4-out” rule, effective immediately;
  • Committing to further grow pathways to permanent residency so eligible applicants are able to contribute more fully to Canadian society; and
  • Requiring low-wage employers, where appropriate, to advertise to more than 1, and up to 4, under-represented groups in the workforce (inclusive of youth, people with disabilities, Indigenous people, and newcomers). Employers will be advised when these changes are to come into effect.

About 79,000 work permits issued by Immigration, Refugees, and Citizenship Canada became effective in 2016 through the TFWP. This is a reduction of 33.5% over the peak during the past 5 years, consistent with Employment and Social Development Canada.

 

Supporting Article Research Sources:

Canadian HR Reporter – Employment Law Today and Canadian Newswire

Pending EI Changes Under 2017 Canadian Federal Budget

Source: Bing Images, https://binged.it/2oGnkVu

 

 

 

As you know, last month Canada’s federal government released its 2017 Budget, as detailed in my Budget Highlights article.

The federal government touted the Budget as being particularly family-oriented, and as promoting gender equality and women’s participation in the workplace.

Among the dozens of announced measures in the Budget were a few items affecting Employment Insurance (EI) benefits.

These items will peak interest from employers which stand to be impacted by the following changes expected to be in place by 2018:

  1. Expectant mothers can begin to take EI maternity benefits for up to 12 weeks before their due dates, instead of the current 8 weeks.
  2. Parents will be able to claim EI benefits for up to 18 months as opposed to the current 12 months; but, the total amount of benefits received will be the same (with 12 months’ benefits equal to 55% of EI insurable earnings being extendable to 18 months’ benefits at 33% of EI insurable earnings).
  3. A new EI Caregiving Benefit will be created to give eligible caregivers up to 15 weeks of EI benefits while they are temporarily away from work to support or care for critically ill or injured adult family members. This benefit would be in addition to the existing Compassionate Care Benefit, which applies only where an individual is providing care for a gravely ill family member susceptible to loss of life within 26 weeks.

As a result of these measures, EI premiums are expected to increase for both employees and employers.

Although these measures have been announced, there are a number of details that still need to be ironed out. For federally regulated employers, the Canada Labour Code still needs to be amended to provide for the new leave rules, which the 2017 Budget proposes to do.

For provincially regulated employers (the sizeable majority of employers), it will be up to each province to amend their respective employment standards laws to offer enhanced job-protected leaves of absence that match the extension of benefits proposed in the 2017 Budget.

Most provinces permit a total of 12 months of maternity and parental leave and do not have a general “caregiving” leave, although most provinces have some form of sick leave, family medical leave, or emergency leave. Provincial human rights laws may also require employers to accommodate employees who have family caregiving responsibilities, or face the risk of a “family status” discrimination.

 

Supporting Article Research Sources: Mondaq, Ogletree, Deakins, Nash, Smoak & Stewart

Alberta: Upcoming Workplace Laws Overhaul (Part 2 of 2)

…Continued from Alberta: Upcoming Workplace Laws Overhaul (Part 1 of 2)

The second and last part of this article focuses on the Labour Relations Code’ impending changes.

LABOUR RELATIONS CODE

Perhaps unsurprisingly, the areas of the Labour Code where the government is contemplating change is geared to enhancing union powers and increasing union involvement in Alberta. Also, any changes are likely to lead to a more robust Alberta Labour Relations Board, in concert with broader legislative changes that will impact all unionized workplaces.

In particular, the government is considering whether to:

  • Mandate a “Rand formula” in collective agreements, which involves the obligatory payment of union dues regardless of a worker’s status (i.e., workers would no longer be able to opt-out of a union and avoid paying union dues where they benefit from the collective agreement);
  • Change the Labour Code’s definition of “employer” and “employee”, which could bind more successor employers to collective agreements;
  • Give employees greater freedom in choosing, changing, or cancelling union representation (i.e., the introduction of a “card check” system);
  • Make certain unfair labour practice allegations are subject to a reverse onus provision, thereby putting the burden on the employer to contest an employee’s accusation;
  • Broaden the Board’s mandate to adjudicate a wider range of workplace disputes;
  • Augment the Board’s power, procedures, and remedial options; and
  • Undertake a general review of the Labour Code to see where Alberta’s labour laws depart from the Canadian mainstream (in a way which the government determines is “without benefit”).

CONCLUSION

Given that the legislation is due for an update, and the NDP’ orientation towards improved rights for workers and unions, it seems likely that the changes to the Employment Standards and the Labour Code can occur throughout this term of the NDP’s mandate.

The government says these changes are necessary to offer a “family-friendly workplace”. What remains unclear, though, is the extent to which these changes can co-exist with a “business-friendly workplace” since many of the proposed changes tip heavily for employees and unions, while Alberta’s economy remains in a fragile state.

 

Article Research Sources: Blake, Cassels & Graydon LLP, Mondaq

2017 Canadian Federal Budget Highlights

This article details the key points of the 2017 Federal Budget, tabled on March 22, 2017, by Finance Minister Bill Morneau.

Photo Source: thestar.com/The Canadian Press

 

 

 

 

 

 

 

HIGHLIGHTS OF THIS BUDGET INCLUDED:

  • EI premiums increasing by 5¢ to $1.68 for every $100 of insurable earnings, – the maximum allowable increase under the current Employment Insurance Act.
  • The deficit is at $23B, down from $25.1B in the last fiscal update, and is projected to reach $28.5B for 2017-18 (including a $3B contingency fund) before declining to a projected $18.8B during 2021-22.
  • Phase out of the 71-year-old Canada Savings Bond program as it is no longer a cost-effective savings vehicle.
  • Higher taxes on alcohol and tobacco products: the excise duty rate on cigarettes goes up to $21.56 per carton from $21.03, while the rates on alcohol are going up by 2%. Both will be adjusted every April 1 beginning in 2018, based on the consumer price index.
  • The public transit tax credit, which allows the cost of transit passes to be deducted, will be eliminated effective July 1.
  • The budget dedicates $11.2B to cities and provinces for affordable housing over 10 years as part of the second wave of the government’s infrastructure program. $5B will be used to encourage housing providers to pool their resources with private partners to pay for new projects.
  • An “innovation and skills plan” to foster high-tech growth in 6 sectors: advanced manufacturing, agri-food, clean technology, digital industries, health/bio-sciences, and clean resources.
  • $523.9M over 5 years to prevent tax evasion and improve tax compliance, including more auditors, a crackdown on high-risk avoidance cases, and better investigative efforts.
  • $7B in spending over 10 years for Canadian families, including 40,000 new subsidized daycare spaces across Canada by 2019, extended parental leave and allowing expectant mothers to claim maternity benefits 12 weeks before their due dates.
  • $2.7B over 6 years for labour market transfer agreements with the provinces and territories to modernize training and job supports, to help those looking for work to upgrade skills, gain experience, start a business, or engage in employment counseling.
  • A national database of all housing properties in Canada, known as the Housing Statistics Framework, to track details on purchases, sales, demographics, and financing, as well as foreign ownership.
  • $400M over 3 years through the Business Development Bank of Canada for a “venture capital catalyst initiative” to ensure more venture capital is available to Canadian entrepreneurs.
  • A comprehensive spending review of “at least 3 federal departments”, to be named later, to eliminate waste and inefficiencies, as well as a 3-year review of federal assets, and an audit of existing innovation and clean-tech programs.
  • $59.8M over 4 years, beginning in 2018-19, to make student loans and grants more readily available for part-time students, and $107.4M over the same period to help students with dependent children.
  • $287.2M over 3 years, starting in 2018-19, for a pilot project to facilitate adult-student access to student loans and grants.
  • $225M over 4 years, starting in 2018-19, for a new organization to support skills development and measurement.
  • $395.5M over 3 years for the Youth Employment Strategy.

Also on a positive note, this budget suggested no changes to our ‘corporate tax rates’, as well as no changes made to the eligibility criterion for the ‘Small Business’ rate.

For your convenience, you may also wish to watch and share an informative 90 second video also provided at this link.

 

Supporting Article Research Sources: The Toronto Star, The Canadian Press

Canada: A Look Ahead to a Challenging 2017

As we start the new year, let’s look ahead to what may come down the pike in 2017. No crystal ball is necessary to predict that the complex issue of marijuana within the workplace (and everywhere else) will continue to take centre stage.

On December 13, 2016, a publication of the Final Report of the appointed Task Force on Cannabis Legalization and Regulation made headlines for the government’s seemingly bold, yet relatively bureaucratic plan, to legalize and regulate marijuana use.

The report raises a variety of questions and issues about the unwritten rules, such as; who is allowed to produce cannabis? where will cannabis be sold, and to whom? and what health messaging will accompany the legalization of cannabis in Canada?

Notwithstanding the details of this anticipated regulation, we should anticipate that Canadian employers will be faced with the problems associated with marijuana under numerous scenarios:

  • accommodating staff with legal permission to consume marijuana for medicinal purposes;
  • coping with personnel who are impaired by marijuana at work;
  • updating policies and procedures on impairment testing;
  • being asked to pay for marijuana under health plans; and
  • persisted confusion about the present criminal status of marijuana for non-medical use.

Another issue of concern for Ontario employers in 2017 is the outcome of the Changing Workplaces Review. On February 28, 2017, the Review’s Special Advisors are expected to deliver a final report containing recommendations for amending the Employment Standards Act, 2000 (“ESA”) and certain aspects of the Labour Relations Act, 1995 (“LRA”).

The media coverage to date has focused on “precarious” work, and whether changes should be made to standards on overtime, hours of work, exemptions and exclusions, and temporary help agency arrangements.

However, as set out in the Interim Report, the Special Advisors are considering a wider range of plausible amendments to the ESA and the LRA, all of which might have a weighty impact on employment in Ontario.

Finally, we should expect that the Canadian economy will be affected by a combination of political happenings that no one predicted: such as the Donald Trump presidency in the U.S., an NDP government in Alberta, and Brexit.

Shifts in employment metrics, notably in Alberta and Ontario, will likely occur if major policy changes from the U.S. and England are realized.

 

Supporting Article Research Sources: Borden Ladner Gervais LLP, Mondaq