With Bill 148, the Fair Workplaces, Better Jobs Act, making its way through the Ontario legislature, provincially regulated employers will be required to contend with several serious changes to their workplaces as a result of the proposed amendments to Ontario’s Employment Standards Act, 2000, and Labour Relations Act, 1995. While employers in federally-regulated industries are not subject to these changes, the federal government is undertaking significant labour and employment law reform that employers should be aware of and will be affected by.
In June 2017, Bill C-44, An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017 and other measures, more commonly known as the Budget Implementation Act, 2017, No. 1, received Royal Assent. Bill C-44 will amend several pieces of federal legislation, including the Canada Labour Code (the “CLC”).
Leaves of Absence Reflecting New Benefits in the Employment Insurance Act
One goal of the CLC reforms is to ensure the CLC is consistent with the federal government’s amendments to the Employment Insurance Act (the “EIA”), which are also contained in Bill C-44. The amendments to the EIA include, among other things, allowing for parental benefits over a longer period at a lower benefit rate, allowing employees to receive maternity benefits as early as the twelfth week before the expected week of birth, creating a benefit for employees to care for a critically ill adult family member and a benefit to care for a critically ill child. Therefore, the amendments to the CLC include, among other things, increasing the maximum length of parental leave to 63 weeks, extending the period prior to the estimated date of birth when the maternity leave may begin to 13 weeks, and creating leaves for an employee to take care of a critically ill adult family member and a to take care of a critically ill child.
Unjust Dismissal and Reprisal
Bill C-44 also amends the CLC to significantly change the powers of the Canada Industrial Relations Board (the “CIRB”). Among the changes is that unjust dismissal complaints that are not settled, which are currently referred to an adjudicator, will be referred to the CIRB. Additionally, employees will be able to submit a written complaint to the CIRB if they believe their employer has reprised against them, so long as the complaint is submitted within 90 days of when the employee knew or ought to have known of the reprisal circumstances.
When a complaint is made, the onus will shift to the employer to prove that no reprisal happened. If an employee is reprised against, the CIRB has broad powers to order compensation, reinstatement, or any other equitable measure to remedy the reprisal.
Regulatory/Compliance-Related Reforms
The Bill C-44 reforms also reflect the federal government’s recent focus on enforcement of employment standards legislation, setting out a penalty system to promote compliance. Fines for penalties will be up to $250,000 and the government may make regulations setting out criteria that will be used to determine the penalty amounts for each violation. Additionally, the due diligence defence will no longer be available to a person or department found to violate the CLC. Furthermore, the amendments grant the Minister of Employment, Workforce Development and Labour the power to order employer to perform an internal audit of their practices, books, payroll, and other records to establish compliance with labour standards legislation, including vacation entitlements, statutory leaves, hours of work, etc. Bill C-44 also extends the time limit within which employee can recover wages or other amounts owned from 12 months before the complaint to 24 months before the complaint.
Implications
The extension of parental leave may create complications for employers in managing their workforces as some employees may choose to be absent from the workplace for up to six months longer than they could be now, and may consequently be returning to their positions after a significantly longer time away. These potential complications are imminent as the amendments to the EIA and the corresponding amendments to the CLC have been proclaimed into force effective December 3, 2017.
The creation of a new process to address reprisal complaints and the CIRB’s broad remedial power may lead to increased liability for employers as more employees may choose to lodge reprisal complaints. Furthermore, the Minister’s power to order an audit combined with the extended limitations period and the elimination of the due diligence defence increase potential liability for and costs that need to be incurred by employers. These CLC amendments will be coming into force on a date that is still to be determined. Employers should be proactive and prepare strategies to ensure that their policies and practices are in compliance with the CLC.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.
