The federal government has recently completed a review of the country’s federal labour standards, which will be the focus of expected upcoming revisions to the Canada Labour Code (the “Code”). This is a summary of the significant proposals for reform.
This requirement does not exist presently under federal law which sets the relevant minimum as the standard set by each province or territory. The proposal is that this be replaced by one federal standard.
Employees under Part III of the Code
This section of the Code gives rise to unjust dismissal complaints, amongst other remedies. It is proposed that the definition of “continuous employment” under the unjust dismissal remedy, which requires 12 months or more of consecutive service, be amended. This would allow the definition to include lay-offs or other work interruptions of less than 12 months.
It is also recommended that a new process be introduced to deal with the provisions which exclude certain employees from accessing certain remedies under the Code. A good example, again, is the unjust dismissal remedy which does not apply to “managers”. The recommendation is that the remedies be made available to as many employees as possible.
It has also been recommended that the concept of “joint and several liability” be added to make federal employers jointly responsible with subcontractors, such as temporary help agencies. Currently, section III of the Code does not address the issue of liability in such employment relationships.
Right to Unplug
Interestingly, the panel has not advanced a position with respect to whether it should be mandated that employees be allowed to shut off electronic communications during non-working hours. It did, however, recommend that workers providing such services out of normal working hours be compensated for their time.
It is also proposed that employees who are on “stand by” outside of working hours be compensated. Presently, persons who are called into the work premises outside of their regular working hours are entitled to a minimum of three hours’ pay.
Further study is recommended for the impact of email communications and “work intensification” which presumably will engage the right to unplug.
Nothing precise has been suggested as of yet, but the concept has been given a positive nod. This would be particularly important for disability insurance which creates a new hurdle of insurability each time a person changes employers, which is clearly unfair. Also, the same challenges appear with private pensions. No doubt the actuaries of the insurers and pension providers will need to weigh in, but at the end of the day, it is all about risk assessment, well within their purview to assess and rate for premium purposes.
One Voice for Non-Union Personnel
It is recommended that Part III of the Code be amended to allow for “concerted activities” for the purpose of collective bargaining and that a review is made of “graduated models of legislated collective representation”, which presumably refers to collective negotiation of workplace rights with an entity not quite with union status. This comes after a finding that precariously employed people, including non-unionized workers and women, are less likely to speak up about health and safety issues due to fear of reprisal.
Lessons for Both Sides
These proposals are just that for the moment and it remains to be seen what recommendations will result in legislative reform. Stay tuned for further news. These initiatives do seem primarily employee-oriented to date.
Get Advice Before You Act
The Canada Labour Code is powerful legislation, particularly the unjust dismissal remedy which has been interpreted very liberally to apply to a “not-for-cause” termination, absent a genuine redundancy. If you have questions about this issue or any question related to labour concerns, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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