Regulations Amending the Canada Labour Standards Regulations

In preparation for the September 1, 2019, coming into force date of the amendments to Part III (Labour Standards) of the Canada Labour Code, the federal government registered in the Canada Gazette, Part II, Volume 153, Number 12, on June 3, 2019, the consequential amendments to the Canada Labour Standards Regulations. This is intended to align the Regulations with the new and amended Canada Labour Code provisions and to support their implementation. Additional housekeeping amendments are also needed to address other editorial and alignment issues.

Background

The Budget Implementation Act, 2017, No. 2, (introduced as Bill C-63, discussed previously on Slaw here) which received royal assent on December 14, 2017, and the Budget Implementation Act, 2018, No. 2 (introduced as Bill C-86, discussed previously on Slaw here), which received royal assent on December 13, 2018, include provisions that amend Part III (Labour Standards) of the Canada Labour Code (the Code). This includes: the introduction of the new right for employees to request flexible work arrangements; three new leaves (Personal Leave, Leave for Victims of Family Violence and Leave for Traditional Aboriginal Practices); additional Bereavement Leave; and new and amended provisions to support flexible workplaces including changes to the Hours of Work, Annual Vacations and General Holidays provisions.

What are the consequential amendments to the Canada Labour Standards Regulations?

As explained in the Gazette, the following consequential amendments to the Canada Labour Standards Regulations are required in order to align the Regulations with the new and amended Code provisions.

1. Modified work schedules and maximum hours of work
The Code provisions regarding modified work schedules and maximum hours of work were amended to extend the employer’s ability to modify work schedules in relation to individual employees. As such, Schedule III of the Regulations containing the information to be posted by the employer for 30 days before the work schedule of one employee takes effect is amended to reflect its application to one employee.

2. Overtime pay or time off
The Code was amended to provide that, where the employer agrees, employees may take time off instead of receiving pay for overtime hours worked. Accordingly, where reference is made in the Regulations to overtime pay, the provisions, where appropriate, are amended to be made more general and inclusive of the possibility that overtime hours may not necessarily be paid, but may alternatively be taken as time off.

3. Annual vacations
The Code was amended to provide for annual vacation to be taken in more than one period and provides that, in such cases, the employer pays to the employee the proportion of the vacation pay corresponding with the amount of vacation taken. Accordingly, the Regulations outlining the timing of vacation pay payment in one period are amended to reflect proportionality of payment to the amount of vacation taken where vacation is taken in more than one period.

4. Averaging
Where the nature of the work necessitates an irregular distribution of hours of work, an employer may average hours of work over a period of two weeks or more. This changes the way in which overtime hours are calculated. Therefore, the Regulations are amended to ensure that any paid days taken under both the new Personal Leave and the new Leave for Victims of Family Violence are included in the calculation of standard, maximum and overtime hours where an averaging plan is in place.

5. Regular rate of wages
The Regulations set out the calculation of an employee’s “regular rate of wages” where their hours of work differ from day to day or where they are paid on a basis other than time. The new Personal Leave and Leave for Victims of Family Violence are added to this provision to ensure that new paid leaves are captured in the calculation of an employee’s regular rate of wages in the circumstances described.

6. Multi-employer employment
Employees employed by multiple employers, specifically in the long-shoring industry, are not necessarily considered continuously employed. For the purposes of qualifying for certain leaves, the Regulations deem employees engaged in multi-employer employment to be continuously employed. To ensure that employees engaged in multi-employer employment are entitled to the paid portion of the new Personal Leave, the paid portion of the Leave for Victims of Family Violence and the new Leave for Traditional Aboriginal Practices, all with three-month continuity of employment requirements, the Regulations are amended to include these leaves in the list of leaves for which employment is deemed to be continuous.

7. Bereavement leave
The Code was amended to increase the amount of entitlement to bereavement leave from three to five days. It entitles employees who have completed three consecutive months of continuous employment to be paid for the first three of these days and to take the leave in one or two periods. As such, an employee may take the paid portion of the leave in two separate periods. Consequently, the Regulations are amended to indicate that where the paid portion of the leave is taken in two periods, each period will be paid in the manner currently outlined in the Regulations (i.e. the average of the employee’s daily earnings exclusive of overtime hours for the 20 days the employee has worked immediately preceding the first day of leave).

8. Consequential compliance requirements
Record keeping Amendments to the Regulations to establish record-keeping requirements are necessary to enable implementation and enforcement of the Code amendments. The Regulations are amended to require employers to keep the following records for a period of at least three years after work is performed:

• Modified work schedules and maximum hours of work
• Schedule changes
• Shift changes
• Overtime pay or time off
• Right to refuse overtime
• General holidays
• Annual vacations: The dates of interruption, resumption and postponement of vacation; and the dates of any interruption and postponement of vacation to take a Leave of Absence for Members of the Reserve Force
• Flexible work arrangements: Any written request by the employee to change the terms and conditions of employment made under the new provisions entitling employees to request flexible work arrangements; any written response to the employee of the employer’s decision relating to the employee’s request for a flexible work arrangement; any written agreement with the employee following an employer’s offer to grant the request for a flexible work arrangement, in part or to offer to make an alternative change and any written agreement to change the terms and conditions of employment in a collective agreement.
• New leaves: With the addition of three new leaves to the Code, i.e. Personal Leave, Leave for Victims of Family Violence and Leave for Traditional Aboriginal Practices, the employer is required to keep a record of: any amounts paid for Personal Leave and Leave for Victims of Family Violence; any documentation to support the reasons an employee may provide to request Personal Leave, or Leave for Victims of Family Violence; any documentation that shows an employee as Aboriginal for the purposes of requesting Leave for Traditional Aboriginal Practices; the dates of commencement, termination and of any interruption of the leaves; any notice concerning the leaves or any interruption of the leaves; and a copy of any medical certificate submitted by the employee in respect of the leave or interruption. For the purposes of providing documentation supporting the reasons an employee may provide for taking either Personal Leave or Leave for Victims of Family Violence as well as for the purposes of providing documentation that shows an employee as Aboriginal, the employee shall provide that documentation only if it is reasonably practicable for him or her to obtain and provide it.
• Bereavement leave

Miscellaneous amendments

Schedule II of the Regulations is intended to be an exhaustive list of labour standards under Part III of the Code which employers are required to post in an accessible location in order to ensure employees are aware of their rights under the Code. Therefore, Schedule II is amended to include the new hours of work standards for schedule and shift changes, the new Division on Flexible Work Arrangements and the three new leaves.

Finally, housekeeping amendments are made to:

• update section 10 of the Regulations relating to employees under 17 years of age with the new title of the Canada Shipping Act, 2001;
• align the French and English texts as raised by the Standing Joint Committee for the Scrutiny in Regulations (in section 32 of Schedule I of the Regulations, where the term “Manager” is used in the English version, the term “Gestionnaire” is substituted for the term “Directeur” in the French version); and
• update the Labour Program website (www.canada.ca/en/employment-social-development/programs/employment-standards/federal-standards.html) in Schedule II of the Regulations.

Compliance and enforcement

Currently, compliance with Part III of the Code is achieved using a variety of approaches, including education and counselling, investigation of complaints, inspections of workplaces, wage recovery and adjudication of unpaid wages, unjust dismissal and genetic discrimination complaints.

Labour Standards Inspectors investigate complaints, engage in proactive inspections to verify compliance and provide advice and information materials to assist federally regulated employers and employees in understanding their responsibilities and rights under Part III of the Code. Some tools are available to respond to non-compliance with the Code: issuing a notice of voluntary compliance and seeking an assurance of voluntary compliance from the employer, issuing a determination letter and payment order to recover unpaid wages (or notice of unfounded complaints where no wages are found owing), and providing mediation to try to settle unjust dismissal complaints. Prosecution may be pursued to address the most serious offences.

What do I have to do to comply?

To comply, federally regulated employers and undertakings need to understand what is being changed and added to the Code. There are significant changes that will require federally regulated employers and undertakings to review and update their HR practices and policies and communicate those updates to employees.

According to the federal government and as explained in the Gazette, federally regulated employers and undertakings will especially need to familiarize themselves with new record-keeping requirements in the Regulations when they come into force in 2019. Since these requirements are straightforward, it is assumed that each employer would spend 30 minutes to learn them. This one-time cost for all federally regulated and undertakings employers is approximately $277,000.