In A Flash

Bill C-86 Aims to Bring Pay Equity Legislation to the Federal Sphere and Amend the Canada Labour Code

The Federal Government recently introduced Bill C-86, the Budget Implementation Act, 2018. The Bill proposes prescriptive pay equity legislation that will apply to federally regulated employers. In addition, the Bill will also have a significant impact on labour standards under the Canada Labour Code (the “Code”).

If the Bill passes, some of the most significant new provisions and proposed changes include the following:

A. Pay Equity

  • Federally regulated private sector employers will be required to establish a pay equity plan. Within those plans, employers are expected to identify, evaluate and eliminate differences in compensation between female and male jobs of equal or proportionate value.
  • There will be a Pay Equity Commissioner established within the Canadian Human Rights Commission. The Pay Equity Commissioner will enforce the Act, and have the power to make orders.
  • If the Bill passes, it will require employers with 100 or more employees to establish a pay equity committee to develop and maintain the pay equity plan. An employer will also have to establish a pay equity committee if that employer has between 10 and 99 employees if any of those employees are unionized.
  • A pay equity Committee is mandated to include at least three members and the requirements include: at least 50% of the members must be women, each bargaining agent must be represented, non-union employees elect their representative and at least one member must be a person selected by the employer to represent it.
  • This single Committee will be responsible for identifying, evaluating and determining any pay equity wage gaps for all job classes of an employer, both unionized and non-unionized.
  • Where there is more than one bargaining agent, those bargaining agents will be evaluating positions in other bargaining agent’s collective agreements, for example, there will be an annual reporting requirement setting out any adjustments paid in the year.

B. Canada Labour Code

Meal Breaks and Rest Periods: Employers will be required to provide an unpaid break of at least 30 minutes during every period of 5 consecutive hours of work, with certain exceptions. Further, the amendments provide a rest period of at least 8 consecutive hours between work periods or shifts, with certain exceptions. Regulations will govern the provision of such rest periods.

Scheduling: Employers will be required to provide employees with their work schedule in writing at least 96 hours before the start of the first shift under that schedule. Where 96 hours of notice is not given, employees will be entitled to refuse work starting within 96 hours from the time that the schedule is provided, subject to certain exceptions, including conflicting terms in a collective agreement. Employers will also be prohibited from reprising against employees for such refusals.

Breaks for Medical Reasons: Employees will be provided with unpaid breaks that are necessary for medical reasons. That being said, if requested by the employer, employees will be required provide a certificate issued by a health care practitioner setting out the length and frequency of breaks needed. Employees will also be entitled to any breaks necessary to nurse or express breast milk.

Leaves of Absence: The Bill will eliminate service requirements for parental leave, maternity leave, leave related to critical illness, and leave related to death or disappearance. A lesser standard of medical documentation in support of certain leaves has also been included within the amendments: employees will be entitled to provide medical documentation from a defined group of “health care practitioners” rather than “qualified medical practitioners”.

The Bill also introduces several new leaves:

  • Leave for Victims of Family Violence – up to five (5) days of paid leave each calendar year, after 3 months of continuous employment;
  • Leave for Court or Jury Duty;
  • Medical Leave – the current sick leave provisions will be converted to medical leave, which will encompass up to 17 weeks of absence as a result of personal illness or injury, organ or tissue donation, or medical appointments during working hours;
  • Personal Leave – up to five (5) days each calendar year, which includes three paid days, for reasons related to personal illness, the carrying out of responsibilities related to the health or other urgent matters involving family members, reasons related to the education of family members under 18, in order to attend citizenship ceremonies, and for any other reason prescribed by regulation.

Parental Leave: A new parental sharing benefit has been introduced. The amount of leave which may be taken will be increased by up to 8 weeks, if that leave is divided among two parents. This is reflective of proposed increases to parental leave entitlements under the Employment Insurance Act.

Minimum Age of Employment: The minimum age of employment will be increased to 18 years of age from 17 years of age, subject to certain exceptions set out in the regulations.

Termination of Employment: Currently, the Code provides for 2 weeks’ notice of termination in instances of individual termination of employment. The Bill introduces new notice requirements wherein employees will be entitled to expanded notice or wages in lieu of notice after each year of completed employment. After 3 years of employment, employees will be entitled to 3 weeks of notice, and so on, up to a maximum of 8 weeks of notice after 8 years of consecutive employment. Where the employee is represented by a union, the employer will be required to give the applicable number of weeks’ notice to the union and to the employee.

Employers will be required to provide a written statement setting out vacation benefits, wages, severance pay, and any other benefits and pay arising from employment at the time of termination, in instances where wages in lieu of notice are given, or a minimum of two weeks prior to termination where the employee is provided with working notice.

In instances of group termination of employment, the Bill will require that notice of group termination of employment be given to affected employees at least 16 weeks before the first date of termination in the group. This represents an expansion of the current requirement that 16 weeks’ notice be given to the Minister. In addition, employers will be required to provide employees who are terminated during the group notice period a minimum of eight weeks’ notice or wages in lieu of notice. A written statement of benefits must also be provided in such instances.

Unjust Dismissal: The Bill expands upon the changes to the adjudication of unjust dismissal complaints first implemented by Bill C-44, which are not yet in force. Bill C-44 provided that unjust dismissal complaints will be referred to the Canada Industrial Relations Board (“CIRB”), rather than an adjudicator.

Under Bill C-86, inspectors will be permitted to deem an unjust dismissal complaint to be withdrawn if the complaint is not referred to the CIRB for adjudication following a request from an inspector that the complaint be referred. Additionally, the CIRB will be entitled to reject a complaint in a number of instances, including if the CIRB is satisfied that it lacks jurisdiction over the complaint, the complaint is frivolous, vexatious, or not made in good faith, the complaint has already been settled, if there is another manner of resolution that the CIRB considers should be pursued, or if the subject matter of the complaint has already been addressed in another proceeding.

Vacation: Employees who complete 10 consecutive years of employment with the same employer will be entitled to 4 weeks of vacation. In order to receive 3 weeks of vacation, employees will only be required to have completed 5 years of consecutive employment with the same employer, decreased from the current 6 year threshold… Employees who have completed 5 consecutive years of employment will be entitled to 6 per cent vacation pay, and employees who have completed 10 consecutive years of employment will be entitled to 8 per cent vacation pay.

Holiday Pay: Minimum length of service requirements for holiday pay will be eliminated. Currently, employees are not entitled to holiday pay for a general holiday that occurs in their first 30 days of employment with an employer.

Reimbursements: There will be an additional new provisions that require employers to reimburse employees for reasonable work-related expenses.

Equal Pay: Employers will be prohibited from paying employees different rates of pay because of their “employment status” (i.e. full-time vs. part-time, temporary, etc.), where the employees are performing substantially the same kind of work in the same establishment. This is subject to certain exceptions, including seniority, merit, and the quantity or quality or production.

Employees who believe that they are not receiving equal pay for equal work will be entitled to submit a written request to their employer for a review of their rate of pay, and the employer will be required to reply to the request, in writing, within 90 days. Employers will be prohibited from reprising against employees who make such inquiries. Employers who inform employees of employment or promotion opportunities in writing will be required to inform all employees of such opportunities, regardless of employment status.

Similar provisions also require employees of temporary help agencies to be paid equal pay for work performed by the employees of a client, where the employees are performing substantially the same kind of work in the same establishment. Employees of temporary help agencies are similarly permitted to request a review of their rate of wages, and agencies will be prohibited from reprising against employees who request such a review.

Temporary Help Agencies: The Bill introduces a number of other provisions with respect to temporary help agencies. Such agencies will be prohibited from charging fees to assignment employees, charging fees to clients for establishing an employment relationship with employees in certain instances, and from preventing employees from establishing an employment relationship with a client. Should such fees be levied, the agency will be required to reimburse that fee.

Continuity of Employment: If a work, undertaking, or business, or any part of a work, undertaking, or business, is leased or transferred by sale, merger, or any other manner, the employment of the employee will be deemed to be continuous, notwithstanding the transfer. This also applies to work being transferred via a retendering process.

Burden of Proof: An employer will carry the onus of establishing that a complainant is not their employee where a complainant seeks to establish a breach of Part III of the Code, Standard Hours, Wages, Vacations and Holidays. Employers will be prohibited from treating an employee as if they were not their employee in order to avoid their obligations under Part III.

New Enforcement Provisions: The amendments will permit the Minister to designate a Head of Compliance and Enforcement, who will perform functions related to the administration and enforcement of Parts II, III, and IV of the Code. Inspectors are also provided with broad powers of inspection relating to the clients of temporary help agencies where there is an allegation by an employee of the agency of a contravention under the Code.

The proposed Bill is not yet law. The Bill must still proceed through the legislative process. Stay tuned for further updates.

If you have any questions regarding the impact of any upcoming changes to Ontario’s workplace laws please do not hesitate to contact a Mathews Dinsdale lawyer.

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