Alberta Rolling Back Certain Employment Standards and Labour Relations Reforms

On May 27, 2019, the Alberta government tabled Bill 2, An Act to Make Alberta Open for Business to make amendments to the Employment Standards Code and the Labour Relations Code. This involves rolling back certain measures that were implemented by the previous government and adding in new rules. According to the government, the proposed Open for Business Act would reduce unfair burdens on businesses and give workers more rights in unionized workplaces.

Employment Standards Code changes

1. Introducing a $13 per hour minimum wage rate for students under 18:

This change is not part of Bill 2, but amends the Employment Standards Code through orders in council.

The government did not change the $15 minimum wage, but introduced a new $13 per hour minimum wage rate that will apply to students aged 13 to 17 who are working 28 hours per week or less when school is in session. The wage does not include tips or expense money. The $15 minimum rate remains in place for everyone else.

Students must be paid the general minimum wage of $15 per hour for time exceeding 28 hours in one week. An example provided by the government on its application includes: A student who worked 30 hours in a week can be paid as low as $13 per hour for the first 28 hours, but must then be paid at least $15 per hour for the two additional hours.

This rule only applies when a student is attending school. During school breaks such as summer vacation, spring break, Christmas and winter holidays students are to be paid $13 per hour for all hours worked.

To clarify, a student means any individual less than 18 years of age who attends school up to grade 12, or attends post-secondary or vocational school and it does not apply to youth who are out of school.

This change will take effect June 26, 2019. If employers choose to lower the wage of a student employee, they must notify the employee in advance of the first pay period when the lower wage would take effect.

2. General holiday (statutory holiday) changes to pre-Bill 17 (The Fair and Family-friendly Workplaces Act) with minor modifications

When enacted, Bill 2 will return the qualifying period of 30 work days in the last 12 months before being entitled to a paid general holiday.

It would also return the regular/irregular workday distinctions. This means that if a holiday falls on a day that is normally a workday for the employee and they worked on the holiday, they are still entitled to the same amount of general holiday pay as before.

There are two options for paying employees holiday pay:

1. The employee gets one and a half times their regular wage for hours worked and average daily wage.
2. The employee gets their regular wage rate for hours worked and average daily wage with one day off work.

If a holiday falls on a day that is normally a workday for the employee and the employee did not work on the holiday, they are entitled to their average daily wage.

If a holiday falls on a day that is not normally a workday for the employee and they work on the holiday, they are still entitled to one and a half times their regular wage rate for hours worked.

If the holiday falls on a day that is not normally a workday for the employee and the employee did not work on the holiday, they are not entitled to general holiday pay.

For example, workers would only receive holiday pay for days they would normally be scheduled to work. Also, a restaurant that is normally closed on Mondays wouldn’t have to pay their staff holiday pay for Thanksgiving, for example because it always falls on a Monday if the restaurant is closed.

The general holiday pay changes would take effect on September 1, 2019.

3. Banked overtime changes

The previous NDP government changed the rules to banked overtime so that workers who bank an hour of overtime can take an hour and a half of time off (Bill 17). The provision of Bill 2 gives employers and employees the option to develop straight-time banked hour arrangements and repeals the NDP government rules. Banking overtime will still require employee agreement through Overtime Agreements. Overtime under an Overtime Agreement may be banked for up to 6 months (or longer if under a collective agreement) before it must be taken or paid. If the banked time isn’t used within six months, it would be paid out in cash at time and a half.

The banked overtime changes would take effect on September 1, 2019.

The banked time off with pay earned before September 1, 2019, which has not yet been provided, taken or paid, must be provided in accordance with the former provisions (pre September 1, 2019) unless the overtime agreement or overtime agreement that is part of a collective agreement provides for a higher rate. The pre-September 1, 2019, provisions read that instead of overtime pay, banked time off is calculated at one and a half hours off for each hour of overtime. The time off will be taken and paid at the employee’s wage rate at a time that the employee could have worked and received wages from the employer.

4. Repealing flexible averaging agreements

According to the government, the changes to overtime banking mean the Flexible Averaging Agreement would no longer be needed and is repealed. This would take effect on September 1, 2019.

Impact of employment standards changes on employers

These are major changes that will impact your HR practices and policies. Employers need to familiarize themselves with these changes and review their current policies to comply by September 1, 2019.

As for the minimum wage decrease for eligible student workers (who work 28 hours a week and are 13 to 17 years of age), employers should start drafting their notice to these employees of the change in pay rate for June 26, 2019. Nothing in the law prevents you from continuing to pay student workers the $15 minimum wage.

Despite the above changes, the government has retained several of the reforms made under the previous government’s Fair and Family-friendly Workplaces Act (introduced as Bill 17), such as all of the statutory leaves of absence, vacation, standard averaging agreement, age of employment, among others.

Other employment standards changes are forthcoming and will include:

• The appointment of a Minimum Wage Expert Panel to consult with workers, employers and policy experts; analyse and publish all of the available economic data on the labour market impact of the NDP’s 50 percent increase in the minimum wage; and assess whether hospitality industry workers who serve alcohol would likely generate higher net incomes (i.e., by working more hours) with a wage differential similar to those that exist in Ontario, Quebec and British Columbia.
• Reviewing all regulations as part of the government’s Red Tape Reduction Action Plan, with the goal of reducing the regulatory burden on job creators by one third.
• Reviewing changes to Employment Standards, Occupational Health and Safety and Workers’ Compensation and reviewing the existing Human Rights legislation. The government would like to streamline all Acts to be consistent with each other, remove duplication and overlap and any unnecessary regulatory burdens or red tape for job creators, employees and union members. An example of duplication and overlap is a discrimination or harassment complaint that can be filed to both, Occupational Health and Safety and the Human Rights Commission. The complaints would be filed to just one body.

Labour Relations Code changes

1. Restore the mandatory secret ballot vote for all union certification votes

Bill 2 proposes to restore the mandatory secret ballot for all union certification votes. The government said that removing the secret ballot vote had opened workers to intimidation from both unions and management in certification decisions. Votes will be mandatory in every case (in the absence of unfair labour practices by the employer) and majority support will still be required on any vote. Once this legislation is passed, the requirement for a certification vote will apply to all certification applications after May 27, 2019. The “Card-based certification” based on 65 percent support will be removed.

2. Return to a 90-day period for unions to provide evidence of employee support for certification

The previous NDP government changed the rules in 2018 so that a vote wouldn’t need to be held if a union could demonstrate it had the support of 60 percent of its workers.

Under Bill 2, a vote could only be held after a union could prove 40 percent support from workers. The time period to provide that proof is cut in half from six months to 90 days.

3. Establish a program to support and assist employees to better understand and exercise their rights under labour legislation

The government will also establish a program by October 1 to provide “support and assistance” to unionized employees to help them better understand and exercise their rights with respect to matters under the Labour Relations Code, the Police Officers Collective Bargaining Act, the Public Education Collective Bargaining Act, and the Public Service Employee Relations Act.

The details of this program are to be determined.

4. Strengthen rules that coordinate employment-related complaints when these complaints involve multiple forums

Bill 2 will strengthen new provisions in the Labour Relations Code that will reduce the duplication of employment claims in multiple forums such as labour relations; employment standards; arbitration; and privacy. This means that a process will be in place to allow a complaint to be only heard in one forum rather than in multiple forums.

Moreover, this change strengthen the marshalling provisions of the Labour Relations Code to also apply to Human Rights applications in respect to matters before the Labour Relations Board, arbitration boards, the Human Rights Commission, Employment Standards, the Privacy Commissioner, the Workers’ Compensation Board, a Board of Reference under the School Act, and any other body determined by the Labour Relations Board (and specifically excluding matters before the courts, professional associations, and the Ombudsman). The marshalling changes previously introduced allows the Labour Relations Board to streamline and limit unnecessary or duplicated employment claims in multiple forums (e.g. the same issues being claimed against employers through grievance arbitration, Employment Standards, the Labour Relations Board, and the Human Rights Commission, etc.). The legislation also protects an employee’s right to fair representation with respect to any human rights issue, including the duty to accommodate, that is to proceed by arbitration rather than through the Alberta Human Rights Act.

This will bring about a review of changes to Employment Standards, Occupational Health and Safety and Workers’ Compensation and the existing Human Rights legislation. The government would like to streamline all Acts to be consistent with each other, remove duplication and overlap and any unnecessary regulatory burdens or red tape for job creators, employees and union members. An example of duplication and overlap is a discrimination or harassment complaint that can be filed to both, Occupational Health and Safety and the Human Rights Commission. The complaints would be made to just one body.

Labour relations changes impact on employers

Labour relations changes would come into effect upon Bill 2 receiving royal assent with effective application for most provisions as of May 27, 2019. However, the support program that would assist employees to better understand their rights would come into force on October 1, 2019.

The government has retained some of the changes under the NDP government’s The Fair and Family-friendly Workplaces Act (introduced as Bill 17): Some of the procedural powers given to the Labour Relations Board, Employment Standards and labour arbitrators (e.g., marshalling powers that allow the focusing of complaints although the government will be more streamlined). New procedures relating to the duty of fair representation (e.g., the obligation of the union and its process to properly represent a union member). Maintain essential services legislation.

Other labour relations changes will be coming and include:

• Protecting workers from being forced to fund causes and political parties without explicit opt-in approval; and
• Reversing the replacement worker ban in the public sector.