On July 7, 2020, the Alberta government tabled Bill 32, The proposed Restoring Balance in Alberta’s Workplaces Act that will support economic recovery, restore balance in the workplace and get Albertans back to work. The Bill proposes changes to the Employment Standards Code and the Labour Relations Code. Labour and Immigration Minister Jason Copping stated to the media that the proposed legislation would support economic recovery by cutting “red tape” for businesses and would reverse some changes made by the NDP when they were in government.
1. Key changes to the Employment Standards Code (ESC)
I. Hours of work and rest periods
The rest period requirements under the ESC will be restructured to say, for shifts between 5 and 10 hours, at least one 30-minute rest period paid or unpaid is required. For shifts more than 10 hours, two rest periods are required of at least 30 minutes. The 30-minute rest periods can be broken down into two 15-minute breaks. If there is no agreement on a rest schedule, the ESC defines when breaks will be taken.
A collective agreement may now override the hours of work, shift change and days of rest requirements under the ESC.
II. Averaging agreements
The provisions allowing for averaging agreements have been removed from the Act and will be addressed in Regulation. The new averaging agreement provisions are also being made more accessible and flexible for employers. Averaging agreements have reverted to the concept of compressed workweeks. Employees no longer have to agree to be placed under an averaging agreement. An employer can impose an averaging agreement on employees at the time of hire in the employment contract or on two-weeks notice for an averaging period of 52 weeks (currently 12 weeks).
The averaging agreement must specify the work schedule with daily and weekly hours and the overtime entitlements, however, changes to the schedule are allowed under the new provisions. Employers can determine the manner of amending the work schedule under the agreement by providing notice of the change when required.
Employees are allotted a right to complain about non-compliance by the employer with the averaging agreement of 6 months.
III. Holiday pay
The method to calculate holiday pay is changing by removing the definition of average daily wage (5 percent of an employee’s wages, vacation pay and general holiday pay earned in the four weeks prior to the general (public) holiday.) Holiday pay will now be calculated by averaging the employee’s total wages in one of two periods the employer chooses over the number of days worked by the employee in the period, and these include:
- The four-week period immediately preceding the general holiday or
- The four-week period ending on the last day of the pay period immediately preceding the general holiday.
IV. Deductions from earnings
Bill 32 will allow employers to deduct from employees earning:
- Recovery of an overpayment of earnings paid to the employee resulting from a payroll calculation error. The recovery of overpayment can be made up to 6 months after it was paid to the employee; and
- Recovery of vacation pay paid to the employee in advance of the employee is entitled to it.
V. Temporary layoffs
Bill 32 will extend the normal period of temporary layoff from 60 days within a 120-day period to 90 days within a 120-day period before it becomes a termination. For COVID-19 temporary layoff period, it remains at 180 days before it becomes a termination.
VI. Group terminations
The group termination provisions are reverting to pre-2018 changes, where employers are required to provide four weeks notice to the Minister of Labour when 50 or more employees are being terminated at a single location within a 4-week period. Exempt from this notice provision are employees employed on a seasonal basis or for a definite term or task.
In addition, the group termination requirement has been removed from the individual termination notice or pay in lieu of notice requirements. This change reduces the cost related to group terminations under the ESC substantially.
VII. Payment of earning upon termination
When an employee’s employment ends, the employer will have to pay termination pay within one of the following periods:
- 10 consecutive days after the end of the pay period in which the termination of employment occurs; or
- 31 consecutive days after the last day of employment.
Currently, the time limits are 3 or 10 days after employment ends.
VIII. Variances to ESC
The variance provisions under the ESC have been streamlined to allow among other things that employer associations or groups of employers to apply to the Director of Employment Standards for a variance from certain ESC provisions. Individual employers can apply to the Minister of Labour.
Coming into force of ESC changes
If enacted, Bill 32 will come into force on August 15, 2020, with certain provisions delayed until November 1, 2020.
2. Key changes to the Labour Relations Code (LRC)
I. Union certification and revocation procedures including remedial certification
Bill 32 reverts the procedures for union certification and revocation applications back to pre-2018 procedures. For example, Bill 32 removes the time limits of 20 or 25 working days after an application is filed for it to be fully determined. Labour relations experts had stated that these time limits were hard to extend, arbitrary, inflexible and insufficient to properly address the applications.
As a result of Bill 32, the Labour Relations Board will be able to complete its inquiries and determinations on an application as soon as possible but with the final decision no later than 6 months after the application is filed.
When a certification or revocation application is refused or withdrawn, the same or substantially the same application cannot be submitted within 90 days without the consent of the Board. If a trade union used coercion, intimidation, threats, promises or undue influence to encourage or discourage union membership or activity related to certification applications, then the 90 days time period is extended to 6 months.
Bill 32 tightens the right to remedial certification and these include:
- There must be a determination by the board that a representation vote does not reflect the true wishes of the employees in the unit because of prohibited practice;
- Automatic certification can be issued only if no other remedy or remedies would be sufficient to counteract the effects of the prohibited practice;
- The Board may refuse to certify on the same conditions in cases of prohibited practices by a union.
II. First Contract arbitration
The UPC government is retaining the first-contract negotiation arbitration but as a remedy of last resort with the following amendments:
- The board must be satisfied that arbitration is necessary and that the employer or trade union, as the case may be, has committed an unfair labour practice; and
- No other remedy or remedies would be sufficient to counteract the effects of unfair labour practice.
III. Reverse onus upon employers in cases of unfair labour practice
The reverse onus upon employers in cases of unfair labour practice has been retained but limited to cases involving employee termination only and will now apply against unions in certain cases of unfair labour practice.
IV. Union discipline
Bill 32 provides greater protection for workers by making it more difficult for unions to punish them for seeking to work for employers without a relationship with the union. As a result, a worker cannot be punished if the non-union employment taken does not threaten the union’s legitimate interests.
In addition, the Board must consider a number of factors in assessing whether a union can provide reasonable employment. Currently, the LRC requires the union to provide reasonable alternate employment for workers before it can punish workers for taking non-union employment. If Bill 32 is enacted, the factors the Board must consider when assessing reasonable alternate employment for workers before it can punish a worker for taking a non-union job include:
- Whether the proposed employment is comparable to the current or former employment in respect of the primary functions and responsibilities of the position, duration of the position and wages and benefits offered;
- That a bargaining unit position is not reasonable alternate employment in respect of a managerial position; and
- that reasonalbe alternate employment must be in the same industry as the current or former employment.
V. Union dues
Bill 32 introduces a requirement for workers to opt-in to the payment of union dues unrelated to core union activities. Meaning, union dues deducted from employee’s pay are still mandatory if requested, but only for core union activities related to the representation of employees (i.e., negotiation and administration of collective agreements). Workers will no longer be required to support non-core union activities such as political activities, charitable and social causes. This new provisions will also be found in the Public Service Employee Relations Act, Public Education Collective Bargaining Act, the Post-secondary Learning Act and the Police Officer Collective Bargaining Act.
VI. Strikes, lockout and picketing
The enhanced-mediation process is now referenced as an alternative to mediation under s. 65 of the LRC and will now be a precondition to holding a strike or lockout vote.
The ability of the Board to suspend the deductions and remittance of union dues in cases of illegal strikes has been re-established in the LRC. Suspensions may continue for one to 6 months. When there is an illegal lockout, Bill 32 would allow an order for an employer to pay the union dues, assessments and other fees payable by employees to the union.
Bill 32 also prohibits picketing at secondary locations unless permitted by a Board order after an application has been filed.
Bill 32 facilitates the enforcement of Board orders in respect to illegal strikes or lockouts and illegal picketing. Such orders (interim or final) will now, if determined by the board or upon request, be immediately filed with the Court of Queen’s Bench as an order of the Court. Therefore, violations of these orders would immediately be subject to more severe consequences for failure to comply.
VII. Raids by trade unions in the construction sector
Bill 32 will not allow the early termination of construction collective agreements in cases of union raids. Currently, when a trade union raids another trade union’s bargaining rights, the LRC allows the new union to terminate the existing collective agreement upon two-months notice. In construction, the termination can be automatic and costly for construction employers. This will no longer happen in the construction sector.
VIII. Collective agreement renewals
Bill 32 will allow early renewals and changes to the duration of the collective agreement under certain conditions including that:
- employee must have been informed by their bargaining agent that no applications for certification or revocation will be permitted if the employees vote to enter into the new collective agreement, and,
- employees than vote to enter the new collective agreement.
The Board hs the power to resolve any disputes over these new provisions, with time limits on when such applications can be filed.
IX. Financial reporting and disclosure
Bill 32 adds new requirements upon unions to provide members with an annual financial statement free of charge and within a reasonable time. Details of what must be included in the financial statement and the different classes of a trade union to which this obligation will apply will be outlined in Regulations.
If the union fails to comply with these requirements, a union member has a right to complain to the board so that the union complies.
X. Arbitrators powers and awards
The power of an arbitrator to relieve against grievance time limits will be removed from the LRC. Also removed is the provision requiring arbitrators to make decisions in accordance with the principles of Canadian labour arbitration, allowing for the application of the principle and the application of concepts unique to Alberta.
Bill 32 repeals the legislated standard for board review of grievance arbitration decisions. As a result, the Board will need to determine what standard is to apply in the future. The Board will also have the ability to award costs in cases of grievance arbitration review.
Bill 32 also repeals interest arbitration provisions in a collective agreement between the post-secondary institution and an academic staff association and terminates any interest arbitration processes.
XI. Labour Relations Board changes
Bill 32 makes several changes to the Labour Relations Board powers, process and hearings.
The board may hear cases with the Chair or a Vice-Chair sitting alone rather than a full panel of three when:
- it reviews grievance arbitration awards
- it reviews certain determination applications under the LRC (e.g., whether someone is an employee, whether an organization is a trade union, the membership status of a person in a trade union, whether a bargaining unit is appropriate and whether someone is including in a bargaining unit);
- compelling witness attendance and production of documents;
- questioning circumstances relating to a strike or lockout votes; and
- if the Chair is of the opinion it is necessary due to an emergency.
The power of the Board to summarily reject applications is expanded for cases where an application is filed with improper motives or is otherwise an abuse of process.
The power of the board to summarily dismiss duty of fair representation complaints against unions is extended to where the worker complainant has refused to accept a settlement that is fair and reasonable.
Coming into force
Most of the changes to the LRC come into force on Royal Assent. Others will come into force upon proclamation, meaning at a later date when Regulations are filed.
Unions response to Bill 32
Unifor, Canada’s largest private-sector union, said the bill, along with already passed legislation that clamps down on demonstrations interfering with critical infrastructure, is an attempt to silence legitimate dissent.
“When unions use free speech rights to speak out against injustice, we’re standing up for all workers,” said Unifor national president Jerry Dias.
“Combined with criminalizing protest under the new Critical Infrastructure Defence Act, the [Premier] Jason Kenney is using the power of big government to silence the voices of working people.”