A Rise in Workers' Rights

Changes to provincial employment laws and the introduction of cannabis legislation are prompting Canadian employers to review their employment policies

The government of Ontario (Canada’s largest province) revamped its provincial employment legislation last year and created the Fair Workplaces, Better Jobs Act, 2017, which includes a wide range of amendments to the Employment Standards Act and Labour Relations Act.

The goal was to create greater certainty for workers across Ontario, but some suggest the changes in the Act could create significant competitive issues.

With the stated goals of creating more opportunity and security for workers, key amendments:  

  • Raise the minimum wage to C$15 per hour by Jan. 1, 2019;
  • Require employers to pay part-time, temporary and seasonal workers the same rate as regular full-time employees;
  • Allow employees to request schedule changes or even refuse shifts if asked to work with insufficient notice, effective Jan. 1, 2019;
  • Increase minimum vacation entitlements to three weeks per year for employees with five or more years of service;
  • Give all employees in Ontario paid personal emergency leave days, not just those with 50 or more employees. A minimum number of those 10 have to be paid days. Previously, all 10 were unpaid. Employers can no longer ask for doctors’ notes;
  • Make it easier for unions to obtain bargaining rights;  
  • Increase fines and penalties for non-compliance.

“There seems to be a lack of economic data to justify that increase,” says Richard Charney of Norton Rose Fulbright LLP in Toronto. “For those advocates who say it shouldn’t have an impact on employment, that’s naïve. The concern is it might discourage further or continued employment.”

More complicated, says Charney, are the “equal pay for equal work” provisions in the Act, which aren’t about gender-based pay equity. “We’re talking about a fairly radical step of prohibiting employers from paying part-time casual and seasonal employees a rate lower than full-time employees.

“I understand the policy behind it — to try and benefit traditionally disadvantaged workers — but what this legislation fails to take into account is the lack of experience these folks may have compared to full-time employees. It will also require employers to engage in costly and time-consuming reviews of all the roles and wages to determine whether the jobs fall under that,” says Charney.

The changes have prompted employers to review their employment policies to ensure they are in line with the new minimum requirements, says Daryl Cukierman, a partner at Blake, Cassels & Graydon LLP in Toronto.

Of course, also impacting employers this year will be the introduction of cannabis legalization in Canada. “We’re starting to get more calls on it and absolutely I think it’s going to be a function of being clear in setting expectations and reminding employees of expectations around drug and alcohol use in the workplace and that may require employers to take a look at current policies and make sure they still read how they want in light of the new legislation coming down and provide refresher training on expectations,” says Cukierman. “The expectation should be employees come to work fit to perform their duties.”

He recommends employers take a proactive approach given that cannabis will no longer be an “illegal” drug.

“It is possible that employee attitudes about what constitutes acceptable workplace behavior may shift, so I’m advising employers to get ahead of the curve and proactively deal with potential misunderstandings and look at code of conduct and occupational health and safety polices related to smoking at work and workplace impairment and vehicle-use policies,” he says.

Extensions of that are client or social and entertainment policies. “Most employers will allow an employee to take a client out for dinner and drinks, but what about when marijuana becomes legal? Despite its legality, are employers going to take a different line on that?”

Ontario is not the only province revamping its employment laws.

In British Columbia (BC) , the New Democratic Party (NDP) government is looking at changes to the Labour Relations Code that would allow for moving from a secret ballot to a card system for union certification. Employers are concerned that a secret ballot system prevents employees from being intimidated by co-workers into certification.

“What the NDP would like to do is move to a card-only system so, if a union is capable of getting more than 50 per cent of the employees from the bargaining unit to sign cards, there would be an automatic certification without a vote,” says Michael Howcroft, a partner with Blake, Cassels & Graydon LLP in Vancouver.

As well, BC’s minimum wage increased effective Sept. 15, 2017, to C$11.35 per hour from C$10.85. It’s the first step in a plan to raise the minimum wage to C$15 per hour by 2021.

The wage increases apply to employees in several categories: live-in support worker; live-in camp leader; resident caretaker; farm workers; and liquor servers.

Premier John Horgan also announced the intention to re-establish a human rights commission that was dismantled in 2002. Right now, BC has a model allowing complaints to be taken right to the BC Human Rights Tribunal. For other provinces, such as Ontario, and federal employees, complaints must go through an investigation process with a human rights commission.

In Alberta, the NDP government introduced the Fair and Family-friendly Workplaces Act, which proposed the biggest changes to Alberta’s Employment Standards Code and Labour Relations Code in decades. Affecting all provincially regulated employers, most of the amendments were passed into law on Jan. 1, 2018.

“It makes it easier for unions to organize and is a distinct disadvantage to employers being able to argue against the benefits of a union certification. Definitely, the employer community is concerned,” says Howcroft.

The amendments to the Employment Standards Code included increases to leave entitlements and changes to qualifying periods of unpaid leaves of absence. Employees are eligible for leaves after 90 days of employment (it was formerly 52 weeks).

The Fair and Family-friendly Workplaces Act also created a new administrative penalty system to fine employers who contravene the Employment Standards Code. In addition, it would extend the period in which the government could bring a prosecution against an employer to two years from one year.