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On July 7, 2020, the Government of Alberta introduced Bill 32: Restoring Balance in Alberta’s Workplaces Act, 2020 (the “Bill”). This Bill proposes to amend Alberta’s Employment Standards Code and Labour Relations Code. The stated purpose of the Bill is to support economic recovery, restore balance in the workplace, and get Albertans back to work. The changes aim to provide employees and employers with clearer and more transparent rules promoting fairness and productivity in the workplace.
Some of the key changes to the Employment Standards Code and Labour Relations Code proposed in the Bill are summarized below.
Employment Standards Code
Currently, the Employment Standards Code provides different rules for group terminations depending on whether more than 50, 100, or 300 employees are being terminated. Under the proposed change to the legislation, there would be only one set of rules for all terminations of 50 or more people in a four-week period; employers would be required to give four weeks’ notice to the Minister of Labour when 50 or more employees are being terminated at a single location. If an employer is unable to meet the four week notice requirement, written notice to the Minister would be required “as soon as is reasonable and practicable in the circumstances.” Notice to the Minister of a group termination is not required with respect to terminations of employees who are employed on a seasonal basis, or for a definite term or task.
Employers would have more time to pay an employee’s final pay upon termination. Under the proposed legislation, employees must receive their final pay no later than:
- 10 consecutive days after the end of the pay period in which termination occurred; or
- 31 consecutive days after the last day of employment.
These changes would allow employers to provide final pay to employees in accordance with their normal payroll schedule as opposed to being required to process special payments (which can be costly) in order to meet the current requirement of providing final pay within either three or 10 days of the termination date, depending on the circumstances of the termination.
General Holiday Pay
Calculating general holiday pay would be simplified. Currently, the “average daily wage” calculation for paying general holiday pay is 5% of the employee’s wages, general holiday pay, and vacation earned in the four weeks immediately preceding the general holiday. The proposed new “average daily wage” would average only the employee’s total wages over the number of days they worked in either the:
- four weeks immediately before the general holiday; or
- four weeks ending on the last day of the pay period that occurred just before the general holiday.
Deductions from Earnings
Employers would have an expanded ability to make deductions from the earnings of an employee without the requirement to obtain the employee’s consent. Employers, upon providing notice to the employee, would be permitted to deduct the following from earnings:
- a recovery of an overpayment of earnings paid to the employee resulting from a payroll calculation error; and
- a recovery of vacation pay paid to the employee in advance of the employee being entitled to it.
Deductions could be made up to six months after the overpayment was paid to the employee.
The maximum period before a non-COVID-19 related temporary layoff is deemed to be a termination of employment would be extended from 60 days within a 120-day period to 90 days within a 120-day period. Further, specific timing requirements for written temporary layoff notices would be removed. The maximum layoff period for temporary layoffs related to COVID-19 would remain at 180 consecutive days.
Averaging agreements are currently used in Alberta in order to schedule employees to work more than eight hours per day without incurring overtime by averaging the weekly hours they work over a specified period of time. This is often helpful when employees work rotational shift schedules. As the name suggests, this framework currently requires the consent of employees to implement; it is an “agreement” between an employer and its employees.
If the Bill passes, the Employment Standards Code would refer to averaging “arrangements” instead of averaging “agreements.” Employee consent would no longer be required. Employers would be able to implement or amend an averaging arrangement by giving affected employees two weeks’ notice. The new “averaging period” would be a maximum of 52 weeks, up from 12 currently. Employers would no longer be required to provide daily overtime to employees, unless it was included in the arrangement. Unlike averaging agreements, averaging arrangements would not need to have an end date.
There would be an expanded list of the type of jobs that 13 and 14 year olds can do without needing a government permit. These jobs include food services industry roles (as long as the youth worker is working with someone who is at least 18 years of age), light janitorial work in offices, coaching, and tutoring. Employers would still be responsible for the health and safety of young workers and would still be required to ensure they are properly trained and capable of doing the work.
The proposed legislation provides that employees continue to accumulate vacation time while they are on a job-protected leave of absence. Currently, the Employment Standards Code states, “When an employee is absent from work, an employer may reduce the employee’s vacation and vacation pay in proportion to the number of days the employee was or would normally have been scheduled to work, but did not.”
Currently, employers must provide 30 minutes of rest time within, or immediately after, each block of five consecutive hours of work. The proposed change to the legislation would enable employers and employees to have greater flexibility to agree on the employee’s rest period schedule, provided that the schedule still complies with the legislation’s minimum requirements. Employees would need to work for five hours before qualifying for a 30 minute break. For shifts between five and 10 hours, at least one 30 minute break would be required. For shifts of more than 10 hours’ length, two 30 minute rest periods would be required. Rest periods can be paid or unpaid, and can be broken down into two 15 minute breaks instead of one 30 minute block.
Under the proposed legislation, employers and unions would be able to agree to override certain Employment Standards Code provisions relating to maximum daily hours of work, shift changes, temporary layoffs, hours of work averaging, and days of rest under a collective agreement.
Changes to the Employment Standards Code would take effect November 1, 2020 except for three changes that would take effect August 15, 2020:
- Changes to the requirements around group termination notice;
- Length of temporary layoffs; and
- Flexible rules to apply for variances to the Employment Standards Code.
Labour Relations Code
Union Dues and Financial Disclosure
The proposed changes would require unions to provide members with an annual financial statement within a reasonable amount of time following the fiscal year end. The statements must be provided free of charge.
The changes would also make only the portion of union dues that are related to the representation of employees mandatory for them to pay. Employees would have to opt-in to the payment of union dues that are unrelated to core union activities. For example, workers would not be required to pay union dues in respect of political or social activities.
In the event of an illegal strike, the Board could suspend the deduction and remittance of union dues for up to six months. In the event of an illegal lockout, employers could be required to pay employees’ union dues.
First Contract Arbitration
The first collective agreement that is entered into between an employer and a union is referred to as the “first contract.” In the event that disputes arise between the employer and union during the negotiation of the first contract, the Alberta Labour Relations Board (the “Board”) can order the dispute to be referred to arbitration. This is known as first contract arbitration. Under the proposed legislation, first contract arbitration would become an “option of last resort.” The Board could only declare that a dispute be resolved by arbitration if:
- the Board is satisfied that arbitration is necessary;
- the Board is satisfied that the employer or union has committed an unfair labour practice; and
- no other remedy would be sufficient to counteract the effects of the employer or union’s conduct.
Picketing and secondary picketing would be subject to stricter rules. Picketing would be deemed wrongful if it obstructs or impedes a person from crossing the picket line.
Secondary picketing involves picketing at locations other than a normal place of employment. Under the proposed legislation, unions would be required to get approval from the Board before engaging in secondary picketing.
Remedial certification allows the Board to certify the union as a remedy, even when the union has been unable to prove majority support among the employees, when the employer commits an unfair labour practice. An unfair labour practice includes:
- employer participation or interference with the formation of a union;
- employer participation or interference with the representation of employees by a union; and
- financial contribution or other support by the employer to a union.
Remedial certification already exists under the Labour Relations Code. However, the proposed changes would limit when it can be used. The Board must first determine that a representation vote does not reflect the true wishes of the employees in the unit because of an unfair labour practice. Then, remedial certification can be ordered only if no other remedy would be sufficient to counteract the effects of the prohibited practice.
Reverse Onus Rules
The onus of proving certain unfair labour practice complaints currently rests with the employer. This is known as the “reverse onus rule” as the employee is not required to prove the action they are complaining of; instead, the employer must prove the unfair labour practice did not occur. Under the proposed legislation, the current “reverse onus rule” for employers would be limited to cases of employee discharge and dismissal only. Further, a reverse onus would also apply to certain unfair labour practice applications brought against unions.
Early Renewal of Collective Agreement
A 2009 Board decision significantly restricted the ability of parties to a collective agreement to enter into an early renewal of the agreement. The proposed legislation would reinstate the ability to renew collective agreements early. This allows greater flexibility to ensure that collective agreements are consistently serving their purpose. Early renewal of collective agreements would be permitted under certain conditions:
- employees must have been informed by their union that no applications for certification or revocation will be permitted if the employees vote to enter into the new collective agreement; and
- employees then vote to enter the new collective agreement.
Consequences for Prohibited Practices by the Union
Unions would face tougher consequences if they conduct certain unfair labour practices with respect to an application for certification to be the bargaining agent for a group of employees. Previously, a union would have to wait 90 days to re-apply for certification in these circumstances. Under the new legislation, the waiting period would be increased to six months.
Union Disciplinary Powers
Currently, unions may penalize members who work for employers without a relationship to that union. The proposed legislation would provide better protection for members who seek employment outside of the union. This may be a necessary action when the union cannot provide the member with work. The union would no longer be able to penalize a union member for taking a job outside of the union if:
- the union is unable to provide reasonable alternate employment; and
- the employment does not threaten the union’s legitimate interests.
Changes for the Construction Industry
A number of changes would impact the construction industry specifically, including the following.
Existing collective agreements would remain in force after a successful union raid. The changes would require the new union, in most cases, to adapt to the terms of the existing collective agreement, unless the union successfully applies to the Board to amend terms of the agreement that they are unable to abide by.
Industrial unions would be able to form “all employee unions” by representing all employees who work for the same employer, regardless of their trade.
The Board would be able to apply the “build-up principle” to account for circumstances where a larger workforce is expected in the future. The build-up principle allows the Board to refuse a certification application if the number of employees does not constitute a substantial and representative segment of the union.
The Labour Relations Code would be amended to allow the Minister of Labour, instead of the Provincial Cabinet, to have the power to approve major project agreements. Changes to the major project rules would also allow:
- project owners to serve as principal contractors for negotiating major project agreements;
- more than one project agreement per project;
- project owners to delegate authority for bargaining;
- inclusion of maintenance workers in major project designations, without the ability to strike or lockout;
- replacement of voluntary collective bargaining with arbitration to resolve disputes; and
- renegotiation of major project agreements, with disputes to be settled by arbitration.
Under the proposed legislation, arbitrators would no longer have the power to provide relief from the grievance procedure time limits that are set out in collective agreements, which was a change implemented by the previous Government in Alberta.
Arbitrators would also no longer be required to make decisions in accordance with the general principles of Canadian labour arbitration; the proposed change would allow a more Alberta-focused approach to decision making.
Alberta Labour Relations Board Powers
The new legislation provides a number of changes to the Board’s powers.
The Board’s ability to dismiss applications without a hearing would expand to situations where an application has been “filed with improper motives,” as well as where the application is otherwise an abuse of process.
The Board would also have the power to summarily dismiss a duty of fair representation application once the applicant worker has rejected a reasonable settlement offer.
All certification and revocation timelines would be removed. Currently, an application for board certification must be completed within 20 or 25 working days of receipt of application for certification. These timelines have been criticised as arbitrary and inflexible. Under the proposed new rules, the Board would be required to complete inquiries and consideration of an application “as soon as possible,” and no later than six months after the application is filed. This would only be varied under exceptional circumstances.
The proposed changes would also allow the Board to hear more cases with the Chair or Vice-Chair sitting alone, as opposed to a full panel of Board Members. This would apply for matters including:
- review of grievance arbitration awards;
- review of certain determination applications under the Labour Relations Code, such as whether someone is an employee, the membership status of a person in a union, or whether an organization is a union;
- compelling witness attendance and production of documents; and
- questioning circumstances relating to strike or lockout votes.
Finally, the proposed legislation would repeal the legislated standard of review for Board review of grievance arbitration decisions. The Board would need to look to the common law to determine which standard to apply in the future. The proposed changes would also provide the Board with the express ability to award costs with respect to reviews of these decisions.
Most changes to the Labour Relations Code would take effect upon Bill 32 receiving Royal Assent. The remaining changes would take effect upon Proclamation.
This article provides a high-level overview of only some the key changes proposed by Bill 32. To review the Bill in its entirety, see Bill 32. Miller Thomson’s Labour and Employment Team would be pleased to discuss these proposed changes to the legislation and the impact that they could have upon your business.