In A Flash

Employment and Labour Relations Climate Overhauled Again in Alberta

On July 7, 2020, Bill 32: Restoring Balance in Alberta’s Workplaces Act, 2020 (“Bill 32”), was introduced to Alberta’s legislative assembly in an effort to support Alberta’s economic recovery. Bill 32 builds on the UCP Government’s earlier efforts to rebalance workplaces between unions and employers under Bill 2: An Act to Make Alberta Open for Business (reviewed by Mathews Dinsdale here).

The aim was, and remains, cutting “red tape” for Alberta businesses by amending many employment and labour standards set under the NDP government. The key pillars of Bill 32 are to “restore balance and economic stability”, “keep businesses open and Albertans employed”, and “save employers’ time”, and up to $100 million annually to encourage job creation and job security into the future (see here).

The proposed changes will provide employers greater operational and financial flexibility, which will decrease costs and increase efficiencies, help to sustain and grow their businesses, and support the provincial economy. The more notable proposed changes are summarized below.

Employment Standards

The majority of the following proposed changes will take effect November 1, 2020, apart from changes to group termination notice, temporary layoff periods, and variance application rules, which will take effect August 15, 2020.

Hours of Work

  • Averaging Arrangements will be remodeled and rebalanced to resemble compressed work weeks prior to NDP employment standards changes as follows:
    • employee consent will no longer be required, but the employer must provide the employee(s) with 2 weeks’ written notice before starting or changing an averaging arrangement;
    • averaging periods can extend to 52 weeks (currently limited to 12 weeks), or longer if a variance or exemption is issued, and will no longer require an end date (currently limited to a 2-year maximum);
    • employers will be able to specify how amendments to the daily or weekly hours of work schedules of employees in the averaging arrangement will be made; and
    • an employee can bring a complaint for non-compliance with an averaging arrangement up to 6 months after the end of the relevant averaging period, or up to 6 months after the averaging arrangement comes to an end, whichever is earlier.
  • Rest Periods (breaks) requirements will include:
    • at least one 30 minute break for shifts between 5 and 10 hours, and at least two 30 minutes breaks for shifts 10 hours or longer;
    • an employer and employee can agree to when breaks will be taken and how (two 15-minute breaks); and
    • breaks can be paid or unpaid.

Payment and Earnings

  • Holiday Paywill be calculated by averaging the employee’s total wages over the number of days worked in the employer’s choice of the 4 weeks immediately preceding the general holiday, or the 4-week period ending on the final day of the pay period immediately before the general holiday.
  • Payment of Earnings upon Terminationregardless of the reason for termination, can be paid to the employee within 10 consecutive days after the end of the pay period in which the employment was terminated, or within 31 consecutive days after the last day of employment.
  • Deductions from Earnings will be expanded to allow employers to deduct overpayments on written notice (without the employee’s consent), to recover earnings overpayment from payroll errors within 6 months of the overpayment being made, and vacation pay paid before the employee became entitled to it.

Temporary Layoffs and Terminations

  • Temporary layoffs will be extended to 90 days within a 120-day period, and where the temporary layoff is related to COVID-19, up to 180 consecutive days.
  • Group Termination notice requirements will be significantly scaled back to better reflect the practical reality facing employers, and requirements for group termination notice to individual employees or unions will be removed. Under the new rules:
    • if 50 or more employees are terminated from the same location within a 4-week period, the employer must provide the Minister at least 4 weeks’ notice before the date on which the first termination is to take effect, or as soon as reasonable and practicable in the circumstances (currently notice between 8 and 16 weeks is required, depending on the number of employees affected).

Variances and Exemptions

  • Variance and Exemption – employer associations or groups will be able to apply to the Director, and individual employers will be able to apply to the Minister to help employers adapt to changing economic circumstances in the province.
  • Collective Agreements can override employment standards requirements such as maximum daily hours of work, notice of work times, days of rest, and termination under temporary layoff, which affords employers further latitude to manage their workplaces.

Labour Standards

Most of the following proposed changes will take effect upon Bill 32 receiving Royal Assent, except for the following, which would take effect upon proclamation: access to union financial statements/opt-in for union dues, early renewal of collective agreements, rules for secondary picketing, “all-employee” units in the construction sector, building trades of Alberta project agreements, board standard of review (grievance arbitrator decisions), and the inclusion of nurse practitioners in the Labour Relations Code.

Arbitration, Mediation, and the Alberta Labour Relations Board

  • First Contract Arbitration would be pursued as a last resort, only where the Board found arbitration necessary to counteract the effects of an unfair labour practice.This change will be welcomed by employers, as organized workplaces increased dramatically under this mechanism introduced by the NDP.
  • Enhanced Mediation would become an official alternative to mediation as a precondition to a strike or lockout vote, which protects employers and unions equally.
  • Post-Secondary Interest Arbitration will be nullified in collective agreements between public post-secondary institutions and academic staff associations.
  • Arbitrator’s Powers will no longer include relief against grievance time limitations, and arbitrators will be free to consider labour circumstances unique to Alberta (previously bound by Canadian labour arbitration precedents). This is important for employers and unions operating in Alberta’s fluctuating labour relations climate.
  • Increased Authority would allow the Board to:
    • award costs in grievance arbitration reviews, and set a new standard for reviewing grievance arbitration decisions; and
    • hear certain cases without a full panel, develop regulations related to COVID-19 issues, and summarily reject applications when deemed improper or an abuse of process.

Rights and Responsibilities of Unions

  • Reverse Onus provisions will be limited to wrongful termination complaints against employers and unfair labour practice complaints against unions, creating greater balance in organized workplaces.
  • Picketing at a secondary location will require a Board order, a welcome protection to employers in managing productive relationships with unionized employees.
  • Remedies for Illegal Strikes and Lockouts will be faster, more balanced, and enforceable, as related orders may be filed with the Court of Queen’s Bench. The Board may suspend union dues deductions and remittances for up to 6 months for illegal strikes, and order employers to pay union dues and the like for illegal lockouts.
  • Union Dues unrelated to core union activities (politics, charity) will require members to opt in to payment, a further rebalancing of power in an organized setting.
  • Union Discipline against non-union workers will be limited. For instance, punishment where there is no threat to the union’s legitimate interests will be prohibited, and reasonable alternate employment considerations will be expanded.This change protects workers and employers from overreaching unions.
  • Financial Disclosure – unions will be required to provide their members with free annual financial statements, and be open to complaints for non-compliance. This increased transparency helps to rebalance union power dynamics with its workers.
  • Duty of Fair Representation Complaints may be summarily dismissed by the Board where the complainant has refused a fair and reasonable settlement, which affords greater protection to employers.

Certification and Revocation Procedures.

  • Timelines for Certification and Revocationthe Board will be required to complete its considerations “as soon as possible”, but a final decision must be rendered within 6 months of the application being filed, which eliminates process issues that have created inequities under the current system.
  • Remedial Certification requirements will be expanded to include a determination by the Board that on the basis of a prohibited practice by the employer or union:
    • a representation vote would not reflect the employees’ true wishes; and
    • no other remedy or remedies would be sufficient to counteract the effects.
  • Time Bar to Repeat Certification Applications will be extended to 6 months where a trade union coerced, intimidated, threatened, promised, or unduly influenced union membership or activity, which limits powers unions have leveraged since the NDP labour standards changes.
  • Collective Agreement Renewal would be allowed before the expiration of a collective agreement to close an open period in certain circumstances, and the Board would oversee and resolve any related disputes. This allows parties to more easily adapt to changing economic conditions, which is of great relevance in Alberta.

Construction Industry Changes

  • Effect of Raids – early termination of collective agreements will no longer be permitted, eliminating significant financial and operational impacts to employers.
  • Administrative Changes clarify the application of provisions to building trade unions versus all construction unions, and of common employer provisions to all unions engaged in construction work. Industrial unions will be able to form all-employee bargaining units, regardless of trade.
  • Major Projects Changes will provide expedited support and flexibility to construction sectoremployers and unions as follows:
    • clarifications will be added that more than one collective agreement related to a major project can exist, but trade unions are bound only by collective agreements to which they are a party. Also, maintenance workers are included within the scope of major projects, and therefore cannot strike or be locked out;
    • Building Trades of Alberta will be able to negotiate project agreements across multiple trades outside of construction registration agreements;
    • major project construction owners will be able to negotiate major project agreements as principal contractors, and principal contractors will be authorized to delegate bargaining authority with the Minister’s consent;
    • arbitration will be available to resolve major project disputes; and
    • major construction projects can be approved by a minister within 120 days of application barring an extension, and will no longer require Cabinet approval.

The proposed amendments above work to rebalance labour relations to create fairer workplaces. These will be welcome changes for employers who have had to rapidly adapt to changes implemented under the previous NDP government and new UCP administration.

If you have any questions regarding the impact of any upcoming changes to Alberta’s workplace laws, or reviewing your policies in light of these new changes, please do not hesitate to contact a Mathews Dinsdale lawyer.

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