20 Dec
 Céline Delorme
 Labor and employment law
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  Federal government releases report on consultations to modernize the Canada Labor Code

Federal government releases report on consultations to modernize the Canada Labor Code

Céline Delorme

The minimum standards of Canada Labor Code (“Code”) for wages, hours of work and other general working conditions were established in the 1960s, at a time when typical employment (ie, full-time employment with decent wages and benefits) was the norm. In general, these standards have remained the same despite the considerable increase in non-standard employment since the 1970s. Non-standard employment includes temporary and part-time work, generally without benefits, and is characterized by low income , instability and precariousness. In this context, the federal government (Employment and Social Development Canada) consulted for a period of ten months with a wide range of stakeholders to discuss how to modernize the Code so that it more closely matches this code. reality and challenges faced by employees.

The consultations focused on the following topics:

  • improve access to vacation and annual vacations;
  • better support the work-life balance;
  • better protect employees in atypical jobs;
  • update the provisions relating to termination of employment;
  • good wages and benefits.

With regard to improving access to vacation and annual vacation, the main subject of discussion concerned the period during which a worker must be employed before being able to benefit from the various statutory holidays and vacations, and the question whether and how to adjust this period. Although the various stakeholders agreed on the physical and psychological benefits associated with leave and vacation, employers’ organizations emphasized that such leave and vacation was expensive and that access should be based on the enduring loyalty of the employer. employee.

Discussions about work-life balance focused on paid personal leave, whether employees should have breaks, the number of hours employees should not be working each day, and the whether employees should have the “logout right” (ie, the right not to have to check or reply to work e-mail). The right to disconnect has been the subject of discussion since France enshrined this right in its legislation in 2016. The justification for the right to disconnect generally relates to concerns about unpaid overtime and burnout.

As expected, the views of employers ‘and workers’ organizations differed on the issue. The report pointed out that employers’ organizations have made it clear that the assignment of functions is a fundamental management right, and that this is a well-established principle of labor relations. These organizations added that the workplace had evolved and that many employees were no longer working the traditional 9-hour to 5-hour work day. The report said:

Although 93% of respondents said that employees should have the right to refuse to reply to professional communications outside working hours, strong arguments have been put forward to show that any attempt to enshrine this right in legislation would exceed terminals.

The consultation report remained unclear as to whether the right to disconnect would be subject to future regulation, simply stating that: “Given what we have heard, issues like the right to disconnect […] might warrant further examination. “

Regarding protections for workers in non-standard employment, consultations focused on the wage gap between full-time workers and temporary, casual, seasonal or part-time workers doing the same job, misclassification of employees as self-employed or independent contractors, the awarding of new contracts and the voice of workers. Although no commitments were made, the report mentioned the concepts of making equal pay compulsory regardless of employment status (ie temporary, part-time or full-time) and to deal with misclassification as an offense, with a presumption of “employee status”.

It is also uncertain what the government could do to update the termination provisions of the Code. Workers ‘organizations have recommended increasing the requirement for notice of termination of employment by replacing the current standard of two weeks’ notice of termination of employment for any employee with at least three months of continuous service with the same employer by “reasonable notice” based on total length of service. Workers ‘organizations have also recommended increasing the severance pay from two days’ wages per full year of service to one week per year of service. For the notice of termination of employment and the termination benefits, the workers’ groups recommended that the total length of service include recurrent periods of service with the same employer.

Employers’ organizations appeared to focus on the Code’s collective dismissal provisions and felt that the 16-week period was too long. Report notes suggestion to remove 16 week notice requirement, but at least one workers’ organization said it was appropriate since the adjustment period may be more difficult with respect to collective layoffs. It was also recommended that the requirement that a terminated employee be informed of his rights in writing be introduced.

Workers ‘and employers’ organizations did not agree on the adjustment to the wrongful dismissal eligibility requirements. Employers’ organizations have pointed out that in increasingly complex workplaces, it takes a long time to train an employee before their suitability can be assessed. According to the latter, the 12-month waiting period should be extended, an employer suggesting between two and five years.

Workers’ organizations have pointed out that the 12-month waiting period deprives workers of unjustified dismissal of workers with shorter tenure due to the prohibitive cost of an action for wrongful dismissal. These organizations suggested reducing the period to three months.

This difference of opinion between employers ‘and workers’ organizations was also reflected in the analysis of the wages and benefits report. Among the policies briefly analyzed in the report are a federal minimum wage and a federal benefits bank for independent contractors. The government has made relatively little progress on these policies, stating that they may warrant further examination.

The full report on the consultations can be viewed on the following site: https://www.canada.ca/fr/emploi-developpement-social/services/normes-travail/rapports/modernisation-normes-federales.html

In our opinion

The report states that Part III of the Code applies to approximately 904,000 employees and more than 18,000 employers. Therefore, any changes will have a significant effect on a substantial portion of the Canadian workforce and federally regulated employers. At this point, it is difficult to determine what might be included in future legislation. However, the government has committed to establishing a modern and vigorous labor standards system. Federally regulated employers should know that changes are coming. We will continue to keep readers up to date with any new developments.

If you would like more information, please contact Céline Delorme at 613-940-2763.

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