Federal Government Omnibus Bill Includes Employment Law Changes

Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures received first reading on October 29, 2018. Bill C-86 is another omnibus budget Bill that, if enacted, would among other things, make changes to the parental leave EI benefits under the Employment Insurance Act (again), significantly amend the Canada Labour Code (again), introduce pay equity legislation and amend the Wage Earner Protection Program, among other Acts.

1. Proposed changes to the Employment Insurance Act

Changes to the Employment Insurance Act (Division 8 of Part 4 of Bill C-86) include among other things, increasing the maximum number of weeks from 35 to 40 weeks and from 61 to 69 weeks for which parental benefits may be paid if these benefits are divided between claimants-depending on their selection.

If enacted, the Employment Insurance Act provisions will come into force on a day to be fixed by order of the Governor in Council.

2. Additional Canada Labour Code changes in budget Bill C-86

Changes to the Canada Labour Code (Division 15 of Bill C-86) include:

I. Key changes to leaves of absence:

• The minimum length of service requirements for sick, maternity, parental and critical illness leaves, as well as for leave related to the death or disappearance of a child would be eliminated. The minimum length of service requirement for reserve force member leave would also be reduced from six to three months.
• Employees who divide their parental leave would be entitled to an increased amount of aggregate parental leave, from 63 to 71 weeks. Similarly, employees who divide their leaves would be entitled to an increased amount of aggregate maternity and parental leave, from 78 to 86 weeks.
• Employees would also be entitled to take the following new paid and unpaid leaves of absence: five-day paid leave for victims of family violence; five-day personal leave (three days paid); court or jury duty leave; and medical leave of up to 17 weeks due to personal illness or injury, organ or tissue donation, or medical appointments during work hours.

II. Key changes to hours of work:

• Employees would be entitled to an unpaid break of 30 minutes for every five hours of work.
• There would be a minimum eight-hour rest period between work periods or shifts.
• Employees would be entitled to unpaid breaks for breastfeeding, pumping breastmilk or for medical reasons.
• Employers would also have a new obligation, subject to the terms of any relevant collective agreement, to provide employees with at least 96 hours of advance written notice of their work schedule. If such notice is not provided, employees would have a right to refuse this work subject to exceptions. For example, an employee would not have the right to refuse work where it is necessary for him or her to work in order to deal with a situation that the employer could not have reasonably foreseen and that presented, or could reasonably be expected to present, an imminent or serious threat.

III. Key changes to minimum age of employment:
Bill C-86 would increase the minimum age for employment from 17 to 18 years of age except in rare circumstances. For example, employees under 18 years of age could only be employed in an industrial establishment under certain conditions prescribed by regulation.

IV. Key changes to equal treatment:

Bill C-86 would require employers to provide employees with equal rate of wages if:

• The employees work in the same industrial establishment;
• The employees perform substantially the same kind of work;
• The performance of that work requires substantially the same skill, effort and responsibility; and
• The work is performed under similar working conditions.

V. Key changes to vacation:
Bill C-86 would reduce the length of continuous service requirement for entitlement to three weeks’ paid vacation from six to five years. It would also provide employees with four weeks’ paid vacation after 10 or more years of service.

VI. Temporary help agencies:
Bill C-86 would, under certain conditions, provide temporary help agency employees who perform work in the industrial establishments of their employers’ clients with a rate of wages not less than the rate the client pays to its employee.

VII. Termination of employment:
Bill C-86 would provide employees with at least three months of service with:

• Two to eight weeks’ written notice of termination;
• Two to eight weeks’ pay in lieu of notice at their regular rate of wages for their regular hours of work; or
• A combination of the two, equivalent to at least two to eight weeks depending on length of service.

VIII. Reimbursement of work-related expenses:
Bill C-86 would provide employees with reimbursement for reasonable work-related expenses.

IX. Information related to employment:

Bill C-86 would require employers to:

• Provide their employees within the first 30 days of employment with a written employment statement as well as materials that the Minister makes available and that contain information respecting employers’ and employees’ rights and obligations;
• Provide employees with their updated employment statement within 30 days after any change was made to it;
• Provide employees with any updated materials within 30 days after they were made available;
• Post and keep posted the updated materials in readily accessible areas where they are likely to be seen by employees;
• Provide terminated employees with the updated materials with respect to termination no later than the termination date;
• Retain a copy of terminated employee employment statements for 36 months after the termination date; and
• Provide copies of terminated employee employment statements upon request.

3. Proposed new Pay Equity Act under budget Bill C-86

Bill 86, if enacted, will create the Act to Establish a Proactive Pay Equity Regime within the Federal Public and Private Sectors (Pay Equity Act) that will establish a proactive approach to achieve pay equity and will require employers falling within its scope to actively examine their compensation practices to ensure that men and woman are compensated equally for work of equal value.

The proposed Act to Establish a Proactive Pay Equity Regime within the Federal Public and Private Sectors (Pay Equity Act), when it becomes law, will also amend the Canadian Human Rights Act (CHRA) and the Parliamentary Employment and Staff Relations Act (PESRA).

The proposed Pay Equity Act will apply to federally regulated workplaces, the federal public service, Parliamentary workplaces and Ministers’ offices. Specifically, key pay equity provisions are found under Division 14 of Part 4 of Bill C-86 and include the following measures.

Affected employers with at least 10 employees will have three years to come up with a pay equity plan. The plan must:

• indicate the number of employees of the employer;
• identify job classes within the workplace;
• indicate the gender predominance of the identified job classes (i.e., female- or male- predominant, or gender-neutral);
• evaluate the value of work performed by each job class;
• identify the compensation associated with each job class;
• compare the compensation associated with female-predominant and male-predominant job classes of similar value;
• set out the results of the comparison and identify which female-predominant job classes require an increase in compensation;
• identify when the increases in compensation are due; and
• provide information on the dispute resolution procedures available to employees.

In addition, the Pay equity plans will be required to be reviewed and updated at least once every five years in order to identify and close any gaps that may have emerged.

Employers (union and non-union) will be required

• to post notices setting out their obligations and report on key milestones in fulfilling these obligations.
• to establish a pay equity committee to develop or update the pay equity plan, if he or she has 100 or more employees. Employer, union and non-unionized employee representatives would all be members of the committee.
• to comment on a proposed pay equity plan (or update) before it is finalized, and any comments will be required to be taken into consideration before finalizing the plan.
• to submit annual statements to the Pay Equity Commissioner regarding their pay equity plans.

Mechanisms to request the review or appeal of decisions of the Pay Equity Commissioner will be provided as well as an administrative monetary penalty system (AMPS) to promote compliance .

The Governor in Council will be provided with the regulation-making power to adapt the pay equity regime in its application to Indigenous governing bodies who are employers within the meaning of the Act.

The proposed Pay Equity Act will be required to be reviewed ten years after coming into force and every five years after that.

The new Pay Equity Commissioner with have the authority to conduct compliance audits and investigations of parliamentary entities, to issue compliance orders and notices of contravention and to deal with complaints. Notice will be provided to the Speakers before the Pay Equity Commissioner enters a place under the authority of a parliamentary entity.

The proposed amendments to the CHRA will incorporate references to the new Pay Equity Act when enacted in the CHRA and align certain provisions of the CHRA with those of the new legislation, which includes to expand the membership of the Canadian Human Rights Commission (Commission) to include the Pay Equity Commissioner as a full-time member.

Also, pay equity complaints made against an employer covered by the new Pay Equity Act will be directed to the complaint regime set up under that CHRA.

Additional information

The budget Bill also establishes the Department for Women and Gender Equality, which will replace Status of Women Canada. The February 2018 budget said establishing the agency as a full department would help other departments incorporate gender-based analysis as a regular part of decision-making.

According to the legislation, the new department will have responsibility for “all matters relating to women and gender equality, including the advancement of equality in respect of sex, sexual orientation, or gender identity expression and the promotion of a greater understanding of the intersection of sex and gender with other identity factors.”

Other parts of the Bill include the Canadian Gender Budgeting Act to promote gender equality.

4. Proposed changes to the Wage Earner Protection Program

Bill C-86, the budget omnibus Bill, if enacted, would among other things, make changes to the Wage Earner Protection Program Act.

The WEPPA is an Act to establish a program to provide for payments to individuals in respect of wages owed to them by employers who are insolvent. The WEPP provides financial support to Canadian workers, under federal, provincial and territorial jurisdictions, who are owed money when their employer files for bankruptcy or becomes subject to a receivership. The WEPP provides timely payment of eligible wages, up to an amount equalling four weeks maximum insurable earnings under the Employment Insurance Act ($3,977 for 2018). The Government is now moving forward on its Budget 2018 commitment by proposing to increase the maximum payment from four weeks to seven weeks of insurable earnings, which would total $6,960 in 2018; this would amount to an increase of close to $3,000.

Key changes to the Wage Earner Protection Program Act (Division 16 of Part 4 of Bill C-86) include:

• Increasing the maximum amount that may be paid to an individual under the Act;
• Expanding the definition of eligible wages;
• Expanding the conditions under which a payment may be made under the Act; and
• Creating additional requirements related to Her Majesty in right of Canada’s right of subrogation in respect of payments made under the Act.