Brian Johnston, QC and Matthew Jacobs

Bill C-86, enacted as SC 2018, c. 27, will effect massive changes upon how federal labour and employment relations are regulated. They come into effect in 2019 with staggered implementation dates. Employers in the federal sphere should be alert to changes in:

• Breaks and rest periods;
• Minimum age;
• Leave;
• Vacation and holiday pay,
• Notice of work schedule;
• Group terminations;
• Notice periods;
• Unjust dismissal;
• Pay equity; and,
• Compliance and enforcement.

Labour and employment legislation that will be effected by Bill C-86 in this context is:

1. Canada Labour Code;
2. Employment Insurance Act;
3. Pay Equity Act; and,
4. Wage Earner Protection Program Act.

Background on Bill C-86

Bill C-86 was tabled in Parliament on February 27, 2018. It is omnibus legislation effecting broad changes to the Canadian legal landscape. On December 13, 2018, Bill C-86, the Budget Implementation Act, No. 2 received Royal Assent, bringing changes to a number of pieces of legislation into law. This client update focuses on the changes to federal labour and employment legislation.

1. Canada Labour Code

Leave chart

No minimum length of service to qualify for leave [effective September 1, 2019]

There will no longer be a requirement of minimum service to qualify for the following types of leave:

• sick leave;
• maternity leave;
• parental leave;
• leave related to critical illness;
• holiday pay; or,
• leave related to death or disappearance of a child.

New breaks and rest periods [effective September 1, 2019]

Employees will be entitled to the following breaks:

• Thirty minute unpaid break for every five consecutive hours of work. If an employee is required to be available during the break, the employee must be paid for that time;
• A  minimum rest period of eight hours between shifts, except in the case of an emergency; and,
• Unpaid breaks that are necessary for medical reasons or for an employee to nurse or express breast milk. In the case of medical breaks, a medical certificate can be requested by the employer in writing.

Raising the minimum age [effective date TBD]

The new minimum age of employment will be raised from 17 to 18 years of age. There are exceptions for employees under 18 only for industrial establishments which operate under prescribed conditions.

Employers must provide notice of work schedule [effective date TBD]

Employers must provide 96 hours’ written notice of their intended work schedule to employees. If the employer gives less than 96 hours’ written notice, the employee is entitled to refuse the shift.

There are exceptions where:

• there is an emergency;
• a collective agreement specifies otherwise; or,
• the change in schedule was requested as part of a ‘Flexible Work Arrangement’.

Termination and applicable notice periods [effective date TBD]

For employment terminations, notice entitlement will be replaced with a graduated notice system as follows:

These notice periods do not apply to employees whose employment was terminated for just cause or as part of a group termination.

Group terminations [effective date TBD, not sooner than September 1, 2019]

A group termination is where 50 or more employees are terminated within a four-week period.

Employers have to provide group terminated employees with:

• at least eight weeks’ written notice of termination, pay in lieu, or a combination of the two; and,
• transitional support if any pay in lieu of notice was provided.

There are different notice period requirements depending upon the time period which the employer terminates the group of employees, as follows:

• 16 weeks’ written notice for terminations carried out over a four-week period; or,
• 48 hours’ written notice plus payment of 16 weeks wages’ where the employees are all terminated on the same day.

Employers must provide a statement of benefits setting out the affected employees’ vacation benefits, wages, severance pay and any other benefits and pay arising from their employment.

Employees’ right to employment information [effective date TBD]

Employers will also be required to provide employees with a written employment statement within the first 30 days of their employment. The employment statement must provide all information prescribed under the Canada Labour Code such as the following benefits:

• employee’s vacation benefits;
• wages;
• severance pay; and,
• any other benefits and pay arising from their employment.

There is an ongoing obligation placed upon employers to keep this information current and to republish when there are any changes.

Employees’ right to reimbursements [effective date TBD]

There will be new provisions that require employers to reimburse employees for reasonable work-related expenses. However, this is subject to collective agreement provisions.

Unjust dismissal [effective date TBD, not sooner than September 1, 2019]

Inspectors will be permitted to deem a complaint as withdrawn if an unsettled manner is not referred to the Canada Industrial Relations Board (“CIRB”) for adjudication.

There are additional powers to dismiss a complaint depending upon the nature of complaint, such as:

• the complaint is not within its jurisdiction;
• the complaint is frivolous, vexatious or is not in good faith;
• the complaint has been settled in writing between the employer and the complainant;
• there are other means available to the complainant to resolve the subject matter of the complaint that should be pursued;
• the subject matter of the complaint has been adequately dealt with through another proceeding; or
• if previously suspended by the CIRB, the measures specified in the notice to the complainant were not taken within the specified period.

Proof of employment [effective date TBD]

The employer will now carry the burden of proof to establish an employee is not employed where there is a complaint regarding:

• standard hours,
• wages,
• vacations, and
• holidays

Compliance and Enforcement [Effective date TBD, not sooner than September 1, 2019]

Among other things, the new legislation amends various compliance and enforcement processes by:

• establishing a new Head of Compliance and Enforcement;
• broadening the scope of health care practitioners who can issue medical certificates;
• prescribing the scope of complaints;
• prescribing the deadlines and extension periods for making complaints;
• prescribing that no order can be made, process entered into or proceeding taken in court to question, review, prohibit, or restrain the CIRB’s proceedings; and,
• acknowledging that an order of the CIRB can be filed and registered in the Federal Court and will have the same force and effect as if it were a judgment obtained in that Court.

2. Employment Insurance Act

Increasing parental sharing benefit [effective date TBD]

Under the Employment Insurance Act, the amount of paid parental benefits is being increased from 35 to 40 weeks and from 61 to 69 weeks, depending on their election, if these benefits are divided between claimants. This increase is provided to encourage two-parent families to share parental leave by making additional weeks of Employment Insurance benefits available where sharing of such benefits occurs. Notably, these changes will only be available to employee parents who have a child, or adopt a child, after the amendments come into force.

3. Pay Equity Act [effective date TBD]

If an employer has 10 or more employees, they will be required to comply with the new Pay Equity Act. The purpose of the Pay Equity Act is to address the systemic imbalance of pay between genders where the work provided is of equal value. Employers will be required to create a ‘Pay Equity Plan’ showing how they are meeting the prescribed objects of the Pay Equity Act to eliminate any discrepancies in compensation between men and women who have the same job. Employers must detail:

• the place of work;
• the number of employees in each job;
• the proportion of gender in each job;
• compensation schemes;
• compensation according to gender;
• job classes;
• job descriptions;
• individual abilities, skill, effort, and value; and,
• responsibilities.

The ‘Pay Equity Plan’ is a milestones schedule developed in consultation with the respective employees. Plans will be required to be updated every five years with a recourse strategy to fix any gender gaps in compensation which would have existed under the previous plan.

The Pay Equity Act also creates a ‘Pay Equity Commissioner’ who will be tasked with oversight and with auditing employers ‘equity plans’/compliance with the act. The Pay Equity Commissioner will be granted powers and enforcement procedures under the Pay Equity Act to bring employers into compliance. Disputes and complaints regarding pay equity will be tasked to the Canadian Human Rights Commission.

The Canadian Human Rights Commission will add the Pay Equity Commissioner as one of its members and establish a taskforce entitled the ‘Pay Equity Unit’. In addition, the Human Rights Commission will implement a ‘Pay Equity Division’ which will be utilized to adjudicate alleged complaints of gender pay inequity.

*See our earlier commentaries on the Pay Equity Act here and here.

4. Wage Earner Protection Program Act [effective date TBD]

Changes consist of broadening the scope and compensation under the Wage Earner Protection Program Act, by:

• increasing the maximum amount that may be paid to an individual;
• expanding the definition of eligible wages; and,
• expanding the conditions under which a payment may be made.

Ready for change

At Stewart McKelvey, our Labour and Employment group members have been tracking these changes and how they might affect our clients. We will continue to update you on these changes, in particular, effective dates, as they become known. This update is intended for general information only regarding the changes in Bill C-86 that affect labour and employment issues. Our Labour and Employment group is ready for change. Let us navigate it together.