Strengthening the Prevention of Workplace Violence and Harassment

Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, introduced on November 7, 2017, by the Minister of Employment, Workforce Development and Labour, Patty Hajdu, seeks to amend both the Canada Labour Code and the Parliamentary Employment and Staff Relations Act to, according to the federal government, replace the patchwork of laws and policies that address violence and harassment within the federal jurisdiction, putting into place one comprehensive approach that takes the full spectrum of harassment and violence into consideration.

The new legislation covers federally regulated workplaces, the public service and Parliament (such as the Senate, the Library of Parliament and the House of Commons, including political staff on Parliament Hill). Changes being proposed to the Canada Labour Code (CLC) include repealing weak provisions and ensuring that under part 2 of the CLC (occupational health and safety) and under the Parliamentary Employment and Staff Relations Act (PESRA), employers are required to take steps to prevent and protect employees against all forms of violence and harassment in the workplace including sexual harassment, to require the investigation and reporting of such incidents, to respond to them when they do occur, and to offer support to those employees affected by them. Under the current system, employers are only required to have a policy in place with little direction on how to properly handle such behaviours.

The framework in the Bill has three pillars:

  1. Prevent incidents of harassment and violence from occurring;
     
  2. Respond effectively to these incidents when they do occur; and
     
  3. Support victims, survivors and employers in the process.

Specifically, Bill 65 would,

  • Encompass the full range of unacceptable behaviours ranging from teasing and bullying, to sexual harassment and physical and sexual violence. The term sexual harassment is added to Part II of the Canada Labour Code (occupational health and safety) and means any conduct, comment, gesture or contact of a sexual nature:
  • that is likely to cause offence or humiliation to any employee; or
     
  • that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.
  • Require employers develop improved policies and programs to help prevent workplace violence and harassment including sexual harassment.
     
  • Require employers to investigate and record and report all accidents, occurrences of harassment or violence, occupational illnesses and other hazardous occurrences known to the employer.
     
  • Require employers to make readily available to employees (including posting in a conspicuous place accessible to every employee), in printed or electronic form,
  • a copy of the Act or regulations dealing with the prevention of workplace harassment and violence including sexual harassment;
     
  • a statement of the employer’s general policy concerning the health and safety at work of employees (if the policy is in electronic form, the employer must enable the employee to have access to the information and, on the request of an employee, make a printed copy of the information available);
     
  • a policy statement concerning sexual harassment; and
     
  • any other information related to health and safety that is prescribed or that may be specified by the Minister.
  • Require employers to provide appropriate training on the policy and the law and regulations.
     
  • Require employers to take the prescribed measures to prevent and protect all employees against harassment and violence in the workplace, to respond to occurrences of harassment and violence in the workplace and offer support to employees affected by harassment and violence in the workplace.

The sexual harassment policy must include:

  • a definition of sexual harassment that is substantially the same as the definition in section 247.‍1 of Part 2 of the Canada Labour Code;
     
  • a statement to the effect that every employee is entitled to employment free of sexual harassment;
     
  • a statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment;
     
  • a statement to the effect that the employer will take such disciplinary measures as the employer deems appropriate against any person under the employer’s direction who subjects any employee to sexual harassment;
     
  • a statement explaining how complaints of sexual harassment may be brought to the attention of the employer;
     
  • a statement to the effect that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation thereto; and
     
  • a statement informing employees of the discriminatory practices and provisions of the Canadian Human Rights Act that pertain to rights of persons to seek redress under that Act in respect of sexual harassment.

An employee who believes on reasonable grounds that there has been a contravention of this Part or that there is likely to be an accident, injury or illness arising out of, linked with or occurring in the course of employment must (with exceptions) before exercising any other recourse available under the law, make a complaint to the employee’s supervisor.

The employee or the supervisor may refer an unresolved complaint, other than a complaint relating to an occurrence of harassment or violence, to a chairperson of the workplace committee or to the health and safety representative to be investigated jointly.

If the complaint relating to an occurrence of harassment or violence failed, the matter could be directed to the federal labour minister, who could step in to investigate and order sanctions for employers. The minister would be obligated to investigate the complaint unless the minister is of the opinion that the complaint has been adequately dealt with and the matter is trivial, frivolous or vexatious.

The government’s bill doesn’t outline sanctions for employees found guilty of harassment. The sanctions are on employers who are ultimately responsible for protecting their workers. However, this may be dealt with in future regulations.

Therefore, regulations respecting the investigations, records and reports will be established at a later date.

Also, the proposed rules would also enforce strict privacy rules to protect the victims of harassment or violence.

It is important to note that employers can request an exemption from the establishment of a workplace committee in the application of the above rules, if certain conditions are met. On receipt of a request from an employer that is submitted in the form and manner prescribed by the Ministry of Labour, and if the employer met the conditions, and the Minister is satisfied after considering the factors that the nature of the work being done by employees at the workplace is relatively free from risks to health and safety, the Minister may, by order, on any terms and conditions that are specified in the order, exempt the employer from the requirement to establish a workplace committee.

The government will also launch an awareness campaign to challenge misconceptions and stereotypes, and develop sample policies for employers. To support people who do experience harassment or violence at work, the government will provide outreach to employees and employers to help them navigate the workplace prevention and resolution process and to help direct victims to support services.

In addition, the current Part III of Parliamentary Employment and Staff Relations Act (PESRA) (Occupational Safety and Health) were never proclaimed into force after the enactment of PESRA in 1985. Bill C-65 would make it come into force but replace Part III with the following provisions:

  • Extend Part II of the Code to these defined Parliamentary employees in the same manner and to the same extent as if the employer were a federally regulated workplace, undertaking or business. Thus, enacting enacting health and safety obligations into the Parliamentary Employment and Staff Relations Act.
     
  • Require the Minister to publicly report back on any directions that have been issued under Part II of the Code that were not complied with by tabling the direction in the House of Commons and/or Senate. This same tabling obligation would apply to orders, decisions and directions of the Federal Public Sector Labour Relations and Employment Board that were not complied within the allotted time.

What led to the changes?

According to the Harassment and Violence in the Workplace Public Consultation Report -What we Heard released in March 2017 by Employment and Social Development Canada, Labour Program, 60 percent of respondents reported having experienced some form of harassment. 30 percent of respondents said that they had experienced sexual harassment, 21 percent said that they had experienced violence and 3 percen said that they had experienced sexual violence.

Stakeholders raised the importance of looking at harassment from the perspective of gender-based violence and other forms of discrimination. Among survey respondents, 94 percent of those who reported experiencing sexual harassment were women, while people with disabilities and members of a visible minority were more likely to experience harassment than other groups.

Stakeholders stressed the importance of prevention measures and highlighted the need to raise awareness among employers and employees about issues of harassment and violence. Similarly, 54 percent of the survey respondents said that they would like to see education for all supervisors, 51 percent said that they would like to see education for all employees and 39 percent thought that an awareness campaign would be useful. The consultations also suggested that training and education would help employers to understand and respond to what is happening in their workplaces. Most survey respondents reported that although their workplaces have sexual harassment and violence prevention policies in place, they did not receive training on these policies.

You can read more in the report.

Comments

  1. In the current climate, these measures seem reasonable. The measures are targetted at protecting women from embarrassment, humiliation and severe mental distress. Normally these protections are enforced by strong evidence and are more than a (s)he said (s)he said. After all someones lively and reputation are at stake, complaints should not come easily.

    There is also a great deal missing from the direction taken. Clearly, there is little thought given to protecting men from the same harms. For example, there is no effort to educate the workforce on the special circumstances that dominate male victimization, nor the special circumstances that allow for the female perpetration of men and women.

    There is no, and there ought to be, a commensurate obligation to the right to report a comparable responsibility to be accurate and truthful. When either or both responsibilities are not met, the complainant must be sanctioned. Afterall, what else would stop an inaccurate or false complaint. Leaving these responsibilities and consequences out would invite significant and unchecked harm, as I previously said.

    Further, while protecting the identity of a complainant is debatable, I will accept for this purpose that it is desirable. What is neither clear nor warranted, is protecting a complainant after an unsubstantiated claim, and without a doubt not warranted in the case of a false complaint. Other circumstances that would warrant disclosure of the identity of a complainant would be after the same complainant became a complainant in more the 1 complaint per 2 years (or pick a time) period. This is especially true if any previous complaint was shown to be false or unsubstantiated.

    Encouraging more valid complaints is desirable. Yet there is nothing in this legislation that would encourage any men to come forward.

  2. You make good points about the process for lodging a complaint and the need for it to be accurate and truthful and if it is not the need for sanctions for the false claims however, I am perplexed about the statement that the provisions are written in a way that protect women not men? I do not see gender bias in the way the bill is written. I do know it exist in practice and in the workplace culture.

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