Consolidating Labour Legislation: Proposed Saskatchewan Employment Act

On December 4, 2012, the Saskatchewan government tabled Bill No. 85, An Act respecting Employment Standards, Occupational Health and Safety, Labour Relations and Related Matters and making consequential amendments to certain Acts (hereinafter referred to as the Saskatchewan Employment Act) in the hope of consolidating 12 employment and labour-related laws, restructuring existing provisions, eliminating inconsistencies, and more accurately reflect contemporary employment relationships.

The 12 Acts are:

• The Assignment of Wages Act
• The Building Trades Protection Act
• The Construction Industry Labour Relations Act, 1992
• The Employment Agencies Act
• The Fire Departments Platoon Act
• The Health Labour Relations Reorganization Act
• The Labour-Management Dispute (Temporary Provisions) Act
• The Labour Standards Act
• The Occupational Health and Safety Act, 1993
• The Radiation Health and Safety Act, 1985
• The Trade Union Act
• The Wages Recovery Act

The Public Service Essential Services Act is not included in the legislation. The Act includes a placeholder section to be used when the Saskatchewan Court of Appeal provides guidance on how essential services should be delivered in Saskatchewan.

Some parts of the Bill are organized similar to the Canada Labour Code, from employment standards to health and safety, to unionized workplaces, as follows:

• PART I: Preliminary Matters
• PART II: Employment Standards
• PART III: Occupational Health and Safety
• PART IV: Appeals and Hearings re: Parts II and III
• PART V: Radiation Health and Safety
• PART VI: Labour Relations
• PART VII: Public Service Essential Services (Place Holder)
• PART VIII: Labour-Management Actions (Temporary Measures During an Election)
• PART IX: Assignment of Wages
• PART X: Repeal and Consequential Amendments

Part II, Employment Standards

The Bill will provide for, or maintain existing provisions, as follows:

• Exemption for agriculture workers in the Act, but move all other exemptions to regulations
• To index the minimum wage, use a formula that gives equal weight to the annual change in the average hourly wage and the Consumer Price Index; all increases will be subject to cabinet approval
• Remove the Minimum Wage Board
• Remove the ability for the director to approve a lower minimum wage for persons with a disability
• Allow for electronic payment of wages
• Enable the payment of wages by other means in regulations (e.g. pre-paid cards)
• Continue the requirement to provide a statement of earnings and deductions
• Legislation to protect individuals searching for work from mistreatment and fraud perpetrated by unscrupulous recruitment service providers
• Ensure job seekers are not charged a fee by employment agencies for finding a job; the penalty for charging a fee is equivalent to the amount of the fee
• Maintain the 40-hour workweek, but permit two-week arrangements in the legislation: eight hours per day for five days per week or 10 hours per day for four days per week.
• Permits continue to be required for longer work periods without a day of rest
• Incorporate firefighter hours of work provisions in part II and regulations, but maintain current provisions
• Introduction of two new leave provisions: organ donation (maximum 26 weeks), and to attend citizenship ceremonies (1 day)
• Require four weeks of notice to commence or return from all leaves
• Allow the accruing of service, to a maximum of 52 weeks, for nomination/election leave (currently exists for maternity, parental and adoption leaves)
• Reduction of the qualification period for maternity, parental and adoption leave from 20 weeks to 13 weeks of service
• Stipulate that no two people can be paid a different wage based upon a prohibited ground found in the Saskatchewan Human Rights Code
• Prohibit discrimination for requesting or taking maternity, parental, adoption, nomination and reservist leaves, or requesting modified duties or reassignment due to disability, illness or maternity
• Statutory holidays will be maintained at 10 per year
• Continue to allow a public holiday to be moved if approved by the Director of Employment Standards
• Vacation entitlements will continue to be three weeks per year for the first nine years of service and after completing 10 years of service will increase to four weeks per year
• Allow employer to create a common date for calculating vacation entitlement as long as it does not reduce entitlements
• Overtime is to be paid for work after eight hours in a day and 40 hours in a week unless a permit or modified work arrangement exists
• Allow for the establishment of time banks for overtime hours worked on agreement of employer and employee
• An employee can continue to refuse to work hours in excess of 44 hours in a week
• Temporary lay-off notice requirements are maintained at one week’s notice for 13 weeks to one year of service to a maximum of eight weeks’ notice for 10 or more years of service
• Continue the individual notice requirement which increases from one week of notice for 13 weeks to one year of service to 8 weeks’ notice for 10 or more years of service
• Continue the group termination requirement in the Act with the specific requirements in regulation
• New provisions to modernize wage collection include creating a legislated payment priority for wage debts owed and introduce enhanced enforcement tools to assist in recovery of outstanding wage debts
• Continue to prohibit an employer from taking any discriminatory action against an employee for reporting an offence to a lawful authority
• Increase the maximum fine from $10,000 to $50,000
• Ensure employees employed under a contract of employment are paid their wages, and where this has not occurred, enable the collection of wages through the processes provided for in Part II

Part IX Assignment of wages

• Continue to restrict what an employer can deduct from an employee’s wages

Part VI Labour Relations

• Require unions to provide audited financial statements and the results of votes to their members
• Continue to require at least 45-percent support of the employees before a certification vote can be ordered
• Increase the time period in which notice to bargain is to be given from a period 60 to 30 days prior to the expiry of a collective agreement to a period 120 to 60 days before the expiration of a collective agreement
• Unions are to commence ratification votes within 14 days of concluding a collective agreement
• The unfair labour practices provisions are maintained
• Parties must negotiate in good faith; failure to comply constitutes an unfair labour practice
• Parties must provide the minister with a notice of impasse when an impasse has been reached; and they must participate in a mandatory conciliation process
• Once notified, the minister will have a variety of tools to assist the parties to reach a resolution including mediation, conciliation and arbitration
• Allow an employer to voluntarily recognize a union in specific situations in specific industries which will be prescribed in regulations (i.e. short-term projects where a highly skilled, captive labour pool is to be provided by the union)
• All voluntary recognition agreements are to be filed with the ministry
• Add new grounds for employers or employees to seek decertification of a union: three or more years inactive; continue the current grounds for seeking to decertify a union: loss of support and unfair labour practices
• Clarification of the definition of employee to exclude those employees whose duties are confidential or managerial in matters relating to labour relations, business strategic planning, policy advice and budget implementation and planning; include definition of “supervisory employee” that would prevent a supervisor from belonging to the same bargaining unit as those they supervise
• Restrict the application of the creation of supervisory exclusions for two years, to provide the parties with time to prepare for the change
• Applications to decertify can be made any time after the first 24 months of a certification order and 12 months after an unsuccessful application, thereafter
• Changing the ability for a union to fine a member for crossing a picket line, to be consistent with other Canadian jurisdictions
• Maintaining the requirement to belong to the union where a union has been certified as the bargaining agent
• Maintaining the current exemption from belonging to the union on religious grounds
• Maintaining secret ballot votes to ensure workers can express true wishes without fear of reprisal
• Maintaining the ability of employers to communicate directly with employees on any labour relations matter
• Employers will continue to collect and remit dues upon the union’s and employee’s request
• Clarify that employers are to remit union dues to the local unions rather than national or international head offices
• Picketing activities will remain at the discretion of the courts
• If unable to conclude an agreement, the parties must observe a 14-day cooling off period before a strike or lockout can occur; the requirement to provide 48-hour strike or lock-out notice is maintained
• The Act will enable the minister to establish an industrial inquiry commission to consider any impasse in collective bargaining
• The collective bargaining processes in The Police Act, 1990, and The Education Act, 1995 will be maintained in the respective pieces of legislation; the parties will have access to the enhanced tools for settlement of disputes contained in The Saskatchewan Employment Act
• Remove the provision requiring the transfer of a certification order and collective agreement when a business successfully bids on a contract to provide cafeteria, janitorial or security services in a government-owned building (section 37.1 of The Trade Union Act)
• Maintain all other successorship provisions

Part III & V – Occupational Health & Safety/Radiation Prime Contractors Health & Safety

• Modernizing and establishing consistency with provisions of Part III: Occupational Health and Safety
• Require the designation of a prime contractor on certain multiple-employer worksites; regulations will detail what sectors of the economy this will apply to, as well as project size (e.g., oil and gas, forestry, construction)
• Increase penalties and establish differential maximum penalties for individuals ($500,000) and corporations ($1.5 million)

Part V: Radiation Health and Safety

• The maximum penalties are increased from $15,000 to $100,000
• Remove requirement for order in council approval for reimbursement from WCB of expenditures on the industrial safety programs

Part IV – Appeals

• Create a single avenue for appeals of employment standards and occupational health and safety complaints
• Appeals from employment standards and occupational health and safety will continue to be heard by adjudicators appointed under Part II and Part III
• The powers and duties of the adjudicators are maintained
• The Labour Relations Board will be responsible for assigning adjudicators to hearings
• Decisions of adjudicators can be appealed to the LRB
• Decisions of the LRB can be appealed to the Court of Appeal
• Adjudicators are to consider mitigation when rendering a decision related to lost wages

The government has prepared a table of concordance to help better understand the changes.

The ministry invited feedback on provisions of the Bill from interested stakeholders until March 1, 2013, and has received over 4,000 submissions since consultations began in May 2012. The Ministry of Labour Relations and Workplace Safety is currently reviewing feedback prior to the passing of this new legislation.

The high level of participation throughout the consultation process indicates the people of Saskatchewan are invested in developing legislation that will meet the needs of today’s workplace,” Labour Relations and Workplace Safety Minister Don Morgan said.

Response to this comprehensive review of all employment and labour relations legislation has been mixed. But the government does not seem deterred and is proceeding.

We know that based on the divergence of opinions and comments that were made, we will not have agreement or consensus on them,” Morgan added. “But we think, based on some of the comments that were made at the advisory committee meeting, that we might have more common ground than people might anticipate.”

Morgan continues,

The new Saskatchewan Employment Act clearly defines the rights and responsibilities of employees, employers and unions… The new Act will improve Saskatchewan’s labour legislation to better protect workers, promote growth and increase accountability.”

Bill 85 received second reading on April 8, 2013, and was sent to committee for review and possible amendments.

Some opponents to the Bill think that it will erode union power and tilt the playing field drastically in favour of employers. Others say it is inviting “at will” employment law like in the United States. It is not hard to see how a person might interpret the changes as negative for unions, but I see gains for employees, unions and employers. They don’t look like especially weighty changes, and it may be that they make labour relations more efficient.

Consolidating 12 laws into one, however, seems more like complicating things than simplifying. Besides generally applying to employment, do they have enough in common? Would such a large combined law be more or less accessible than separate laws? Certain of the Acts might work better combined, but the government could just as easily update them separately.

With a majority government behind it though, this consolidated Bill could be the future of Saskatchewan employment law. What do you think? Do the changes give employers an advantage over unions? Does it make sense to combine all of these laws into one?