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Bill-148 Style Changes Now Coming to Federal Workplace Legislation: An Overview of Bill C-86

Now that we’re all acquainted with the changes to Ontario’s labour and employment legislation brought by Liberals under Bill 148, and the Progressive Conservative government via Bill 47 (see the Employer’s Edge blog here and here as well as episodes 2 and 10 of the Lawyers For Employers podcasts here) it is time for us to turn our attention to federally regulated  employers.  The Canada Labour Code is the employment and labour legislation that applies to federal works, undertakings, and businesses.  While many employers in Ontario are provincially regulated and therefore fall under the jurisdiction of the Employment Standards Act, 2000, the Canada Labour Code applies with respect to industries such as: shipping and railways, telecommunications companies, aircrafts and air transportation, inter-provincial common carriers, radio broadcasting, and banking.

On December 13, 2018 the Canada Labour Code was amended upon royal assent of Bill C-86, the Budget Implementation Act, 2018.  In many ways, the Federal Liberal government has enacted laws similar to what the former Provincial Liberals did by way of Bill 148.

What follows is a partial summary of some of the key changes to the Canada Labour Code:

Hours of Work

Breaks and Rest Periods

• Federally regulated employees will now be entitled to an unpaid break of at least 30 minutes during every 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 is further entitled to be granted at least eight consecutive hours of rest between work periods.
• Every employee will be entitled to 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 who is nursing is entitled to any unpaid breaks necessary for them to nurse or express breast milk.

Scheduling

• Employers are required to provide employees with their work schedule in writing at least 96 hours before the start of the employee’s first work period or shift under that schedule. Where 96 hours of notice is not given, an employee may refuse to work any work period or shift in their schedule that starts within 96 hours from that time that the schedule is provided to them, subject to certain exceptions.

Equal Pay for Equal Work

Employers will be prohibited from paying employees different wage rates due to their employment status, if:

1. they work in the same industrial establishment;
2. they perform substantially the same kind of work;
3. the performance of that work requires substantially the same skill, effort and responsibility;
4. their work is performed under similar working conditions; and
5. any other factor that may be prescribed by regulation is present.

This provision will not apply if the difference in pay was the result of a distinction based on seniority, merit, production, or any other criterion prescribed by regulations. Employers are further prohibited from reducing an employee’s wage rate in order to comply with this newly introduced equal treatment provision.

Temporary Help Agencies

Temporary help agencies will be prohibited from charging fees to assignment employees, preventing their employees from obtaining work assignments directly from their clients, or establishing employment relationships with their clients.

Equal Pay for Equal Work provisions will apply to employees placed by Temporary Help Agencies.

Annual Vacations

Bill C-86 will increase the amount of paid vacation that federally regulated employees are entitled to as follows:

• At least two weeks of paid vacation for employees who have completed at least one year of employment;
• At least three weeks of paid vacation for employees who have completed at least five consecutive years of employment with the same employer; and,
• At least four weeks of paid vacation for employees who have completed at least 10 consecutive years of employment with the same employer.

Vacation pay will be equal to 4% for all employees, 6% for employees who have completed five consecutive years of employment with the same employer, and 8% for employees who have completed at least 10 consecutive years of employment with the same employer.

General Holidays

Bill C-86 eliminates the 30 day service requirement for an employee to be entitled to holiday pay for a general holiday.

Termination of Employment

Group Terminations

• Employers who terminate the employment of 50 or more employees in any period not exceeding four weeks must, among other requirements, give a prior notice of at least 16 weeks to the Minister of Labour, as well as an individual notice or severance pay to the employees affected. Under Bill C-86, an employer is permitted to pay such employees 16 weeks' wages and to give the Minister of Labour a notice of at least 48 hours.  

Individual Terminations

Bill C-86 introduces new notice requirements for individual terminations. Currently, the Code requires that employers provide a minimum of two weeks’ notice of termination. Under Bill C-86, the notice requirements are increased as follows:

• 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;
• Eight weeks for employees who have completed eight years of employment or more.

Bill C-86 introduces a number of new leave provisions. It also eliminates length of service requirements for maternity leave, parental leave, critical illness leave, and leave related to death or disappearance.

Leave for Court or Jury Duty

• The Bill introduces a new period of leave for employee to act as witnesses or jurors, or to participate in a jury selection process.

Medical Leave

• An employee will be entitled to a medical leave of absence from employment of up to 17 weeks as a result of personal illness or injury, organ or tissue donation, or medical appointments during working hours.
• If the medical leave is for three days or longer, the employer may require that the employee provide a certificate issued by a health care practitioner certifying that the employee was incapable of working for the period of time that they were absent from work.
• If an employee intends to take a medical leave of absence, they must give written notice to the employer of the day on which the leave is to begin and the expected duration of the leave at least four weeks before that day, unless there is a valid reason why that notice cannot be given, in which case the employee must provide the employer with written notice as soon as possible.
• If the employee makes a written request, the employer must inform the employee in writing of every employment, promotion, or training opportunity that arises during the period when the employee is under a medical leave of absence for which the employee is qualified.

Personal Leave

Every employee is entitled to five days of personal leave per calendar year for the purposes of:

1. treating their illness or injury;
2. carrying out responsibilities related to the health or care of any of their family members;
3. carrying out responsibilities related to the education of any of their family members who are under 18 years of age;
4. addressing any urgent matter concerning themselves or their family members;
5. attending their citizenship ceremony under the Citizenship Act; and
6. any other reason prescribed by regulation.

If the employee has completed three consecutive months of continuous employment with the same employer, the employee is entitled to the first three days of leave with pay at their regular rate.

While an employer may request that an employee provide documentation to support their leave, the employee is only required to provide that documentation if it is reasonably practicable for them to obtain and provide it.

Leave for Victims of Family Violence

Bill C-86 will provide five days of paid leave for victims of family violence.

Overview for Employers

If you are a federally-regulated employer you should be taking steps to address the impact of Bill C-86.  You will want to ensure that your workplace policies in respect of leaves of absences, breaks, and scheduling, are compliant.  You will also want to review the pay rates of your various employees to ensure that they are equal for equal work. 

If you have questions or concerns about what the new amendments to the Canada Labour Code mean for your business, you may want to seek legal advice.  The lawyers at CCPartners can assist you in responding to the legislative changes. Click here to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law and be on the lookout for an upcoming episode on these recent developments!