Impending Substantial Amendments to the Canada Labour Code: Changes Expected

The changes are expected in the Canadian Immigration Workspace as several amendments are proposed to take place from September 1st of 2019 onwards in the Canada Labour Code. These amendments will bring in many modifications in the existing labor code, especially, in leave entitlements, vacation entitlements, scheduling rules, continuity of employment provisions, etc. The federally regulated employers are required to abide by these new obligations and should prepare themselves for the changes.

Here are the key changes that are coming into force to the Canada Labour Code

Changes to Scheduling Rules in Canada Labour Code

The changes are expected in the employee scheduling rules, and some of the employers, especially in the transportation industry, are concerned about it. That’s because, the new amendments oblige them to give written notice, in advance, by at least 24 hours on the shift change. This may affect the operations as the employers are required to provide continuity of service and stick to their delivery timelines, which may become difficult.

The following aspects of employee scheduling will be amended, which are:

Shift Changes: Whenever there is a change in the shift timings of the employees, as per the new rules, the employers are required to give 24 hours’ written notice in advance unless the shift change was an emergency and unforeseeable. The unforeseeable situation, here, can be defined as a situation that needed to deal with an “imminent or serious” threat to health, safety, or the life of a person, a threat to the property, or an intrusion to the “ordinary working of the employer’s industrial establishment.”

Rest Periods: The new rules have provided for employees’ entitlement to a rest period of at least eight hours without any interruption, between the two shifts, subject to any unforeseeable situation described above.

96 Hours’ Notice of Schedule: The changes in the scheduling compels the employers to provide employees with their work schedule in advance of 96 hours before their first shift begins. If the work schedule is not given before 96 hours, an employee may refuse such a schedule. Exceptions are allowed when there is an emergency situation described above or when there is a collective agreement in the employment relationship specifying alternative time frames.

Overtime Refusal: The new rules permit the employees to refuse overtime work in order to make time for the family responsibilities, provided they have made sensible efforts to fulfill their obligation within due time by other means.

Overtime Pay: The new changes allow the employee to have an agreement in writing with the employer to get one and half hours of paid time off for every one hour of overtime, subject to the prior conditions set by the regulation. This is an alternative option given to the employees instead of being paid for the overtime.

Flexible Work Arrangements: When an employee completes six months of continuous employment, he/she may request a change in the work schedule, work location, total hours, or other prescribed conditions. The employer can refuse such a request only in writing, that too on the basis of a set of specified grounds alone.

Medical and Nursing Breaks: The new rules in the employee scheduling permits the employees to go on unpaid breaks for medical reasons or for nursing if needed. The employers may ask for a certificate from a medical practitioner, and employees belonging to certain classes may be exempted, as per the regulation. However, for nursing breaks, the employees need to produce any certificate.

Unpaid Breaks: As per the new regulations, the employees will be entitled to a non-paid break of a minimum of 30 minutes in a period of five hours of continuous work. However, if an employee is at his/her disposal during the break as required by the employer, the employee is entitled to the payment for such a break. However, this break might be exempted during the unforeseeable situations described above.

Changes to Holiday and Vacation Entitlements

The amendments in the Canada Labour Code is expected to bring specific key changes to the Holiday and Vacation Entitlements, which are:

Vacation Pay and Entitlement: The new regulations provide for an employee’s entitlement to a vacation with pay equal to – 4% of wages and two weeks with the completion of at least one-year service, 6% of wages and three weeks with at least five-year service, and 8% of wages and four weeks with at least ten-year service.

Paid Holidays: The amendments will make an employee entitled to paid holidays as soon as the employment commences, removing the minimum 30-day service requirement.

Changes to Leave Entitlements

Amendments in the leave entitlements is another important change that has been proposed in the Canada Labour Code. The new leave entitlements include:

Personal Leave: The employees are entitled to take up to five days of leave for ailment and other prescribed activities, including matters related to self and family members. When the employee completes three consecutive months of service with the employer, he/she will be entitled to the first three days of paid personal leaves.

Leave for Victims of Family Violence: The employees are entitled to 10 days of leave if they become a victim of family violence. This leave facility is also given to the employees whose children become the victim of family violence. This leave facility can be utilized for purposes like participating in a legal proceeding or for relocation, etc. If an employee has been working with the employer for three months consecutively, then the first five days of this leave will be paid leaves.

Medical Leave: The newly introduced medical leave replaces the existing sick leave provision. The duration of the medical leave is also 17 weeks just like the existing sick leave; however, the need for the completion of three months of continuous service with the employer is removed. The amendments cover situations like organ donation or tissue donation and any other medical appointments during the working hours in addition to personal injury or illness. The only requirement is to produce a medical certificate when the employee is absent for three or more days.

Leave for Traditional Aboriginal Practices: When an employee is an Aboriginal person, he/she is entitled to leaves up to five days per year in order to participate in the prescribed Aboriginal practices, provided he/she has completed three months of consecutive employment.

Leaves Related to Critical Illness and Death or Disappearance: The changes have been made to the code to remove the requirement that an employee must have completed at least six months of continuous employment to become eligible for leaves related to critical illness and death or disappearance. As per the new rules, employees are eligible for these leaves immediately after joining.

Leave for Members of the Reserve Force: While the leave for members of the Reserve Force already exists, the minimum requirement to get entitled to the leaves has been reduced to three months from six months, with a cap leave at 24 months in a 60-month period with an exception during a declared national emergency. The new rule also extends this leave to the Canadian Armed Forces military skills training.

Maternity/Parental Leave: The new amendment removes the requirement of a minimum of six months’ consecutive service to get entitled to the leave.

Leave for Court or Jury Duty: The amendments are made in the labor code to create an entitlement for employees to get leaves to attend the court for different reasons like being a witness or a juror in some proceeding or participating in the process of a jury selection, etc.

Bereavement Leave: The changes have been introduced to increase the official bereavement leaves to five days from three days, with first three days coming as paid leaves provided the employee has more than three months of consecutive service. An employee can take this leave any time in a period of six weeks starting from the day of burial, funeral, or memorial service of an immediate family member.

Changes to Continuity of Employment Provisions

Retendering: As per the amendments to Canada Labour Code, when a contract is given through a retendering process, the employees associated with the operation before and after retendering must be considered to be employed with one employer continuously, unless under prescribed exceptions.

Change of Activities: If an employer becomes the federally regulated employer because of the changes in the activities, then the employee’s period of continuous employment will also include the period in which the employer was provincially regulated.

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Diksha Garg

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