Law of the Month: Bill 17: Alberta Finally Overhauls Its Employment Standards Laws

0
130

1976 was a memorable year.

  • The CN Tower opened to the public in Toronto;
  • The ink jet printer was invented;
  • A new comedy show called Second City Television made its debut;
  • Montreal hosted the Summer Olympics; and
  • A radical separatist named René Lévesque won the Québec provincial election.

1976 was also the year that Alberta last adopted major employment legislation. But now, after nearly 3 decades of inactivity, the province has moved to modernize its employment standards laws. Here’s an overview of so-called Bill 17, aka, The Fair and Family-Friendly Workplaces Act and its likely impact both inside and outside Alberta.

THE BILL

Political Context: Bill 17 is, to be sure, a politically-inspired measure authored by the NDP to shore up its labour and social activist base before provincial elections. The bill is being sold as righting the workplace wrongs inflicted by decades of conservative rule.  Without judging the veracity of the political spin, it is fair to say that Alberta’s employment laws have been long overdue for an update.

Scope: Running 249 pages, Bill 17 proposes sweeping changes to 2 sets of laws: the Employment Standards Law or the Employment Standards Code (ESC) and Labour Relations Code. This summary addresses the former (See the ALBERTA section of the Month In Review for an overview of the labour law changes.)

NEW RIGHTS TO LEAVE

The most sweeping changes proposed in Bill 17 are the ones expanding employee unpaid leave rights.

  1. General Eligibility

Under current rules, employees must have 52 consecutive weeks of employment to qualify for maternity, parental and compassionate care leave; Bill 17 would cut that to 90 days.

  1. Maternity & Parental Leave

Key changes include:

  • Extending unpaid maternity leave from 15 to 16 weeks (to account for the one-week waiting period for federal EI benefits);
  • Extending unpaid parental leave from 37 to 52 weeks (to align with proposed EI changes);
  • Allowing termination during the notice/entitlement period only if the business is closed or suspended;
  • Letting employees whose pregnancy ends within 16 weeks of their due date remain eligible for maternity leave—leave would end either 16 weeks after it begins or 6 weeks after pregnancy terminates; and
  • Requiring non-birth s and adoptive parents to complete parental leave within 53 weeks of birth or adoption (as opposed to 52 under current rules).
  1. Compassionate Care Leave

The bill would also significantly expand current compassionate care leave rights by:

  • Extending leave from 8 to 27 weeks (to align with proposed EI changes);
  • Making non-primary caregivers eligible for leave;
  • Eliminating the current 2-installment limit and letting employees take leave in multiple weekly installments; and
  • Reducing required notice to return to work from 2 weeks to 48 hours (although employees would still have to provide at least 2 weeks’ notice of taking leave).
  1. New Leaves

In addition to beefing up current leave rights, Bill 17 would give employees 7 new forms of unpaid leave:

Proposed New Unpaid Leaves

Type of Leave Duration Requirements
Bereavement Up to 3 days per calendar year Bereavement must be for immediate family member
Citizenship Ceremony Half day For employees attending ceremony to receive their citizenship certificate
Critical illness of a child Up to 36 weeks per calendar year* For providing care or support to critically ill or injured child
Death or disappearance of a child *Up to 52 weeks per calendar year if employee disappears as a result of a crime*

*Up to 104 weeks per year if child dies as a result of a crime*

Domestic violence Up to 10 days per calendar year To seek medical attention, get services from a victim services organization, get psychological or professional counselling, relocate temporarily or permanently, seek legal or law enforcement help and any other purpose provided for in regulations
Long-term illness & injury Up to 16 weeks per calendar year* Employee must provide medical certificate and reasonable notice
Personal & family responsibility Up to 5 days per calendar year For personal sickness or short-term care of an immediate family member, which includes dealing with personal emergencies and caregiving responsibilities related to a child’s education

 * Note: Brings Alberta into line with federal EI changes

10 OTHER CHANGES

 Although the leave provisions are the headliner, Bill 17 proposes 10 other ESC changes that you need to know about:

  1. Minimum Wage

Minimum wage-wise, Bill 17 is more notable for what it does not include, namely, indexation or raising the minimum wage to $15.  All it does is repeal an archaic and ignored provision (Sec. 67) allowing employers to apply for a permit to pay people with disabilities less than minimum wage.

  1. Overtime

Proposed overtime changes are also modest and limited to banking rules:

  • Overtime agreements would allow for time to be banked for 6 months rather than 3 months; and
  • Banking of time off for overtime would be calculated at 1.5 hours for each hour of overtime banked rather than on a 1:1 basis.
  1. Rest Periods

Employees would get at least a 30-minute break for every 5 hours of consecutive work. Breaks may be paid or unpaid. Employers and employees could also agree to break them into 2 15-minute segments.

  1. Compressed Work Weeks

Employers and employees may agree to average work hours over a period of 1 to 12 months for purposes of determining overtime pay or time off with pay. So-called “averaging agreements” must:

  • Provide for average hours at or below 12 hours per day and 44 hours per week;
  • Be supported by majority of affected employees or contained within the collective agreement; and
  • Be renewed every 2 years.
  1. Holiday Pay

Bill 17 would:

  • Make all employees eligible for general holiday pay and eliminate the 30-days worked requirement;
  • Get rid of the regular and non-regular day worked distinction; and
  • Set general holiday pay as 5% of wages from the previous 4 weeks worked.

Breaks of employment of less than 90 days will be deemed to be a period of continuous employment for the purpose of calculating minimum vacation entitlements. Employees will also be able to take vacation in half day periods.

  1. Vacation Pay
  • Individuals continuously employed less than 5 years would be entitled to vacation pay of 4% or 2 weeks of total wages;
  • Those employed more than 5 years would get 6% or 2 weeks total wages;
  • Employment breaks of less than 90 days would be deemed continuous employment for purposes of calculating vacation pay; and
  • Employees may take vacations in half-day segments.
  1. Termination Notice

Subtle but important changes to termination notice rules include:

  • Changing the probationary period from 3 months to 90 days;
  • Counting employment breaks of less than 90 days as continuous employment for purposes of calculating termination notice required; and
  • Basing calculation of termination pay on average wages in previous 13 weeks (instead of 3 calendar months) worked before termination.
  1. Group Terminations

Bill 17 imposes more onerous rules for group terminations, including the requirement that employers provide between 8-16 weeks’ written notice of group termination depending on the number of employees terminated at a single location. Recall notices would also have to be in writing. Indefinite temporary layoffs would also be eliminated—layoffs would be limited to 60 days within a 120-day period. 

  1. Youth Employment

There would be tough new restrictions on employing young workers, including a total ban on hiring youth under age 13 (except for artistic endeavours with a permit), a  new list of “light work” jobs that youth under age 16 may perform and other health and safety restrictions to be created later.

  1. Administration & Enforcement

Under Bill 17, employers could be hit with administrative monetary penalties of up to $10,000 for an ESC violation (similar to current rules for OHS violations). Other significant enforcement and administrative changes would:

  • Extend the deadline to start an ESC prosecution from 1 to 2 years;
  • Give Employment Standards Officers authority to order employers to conduct ESC self-audits; and
  • Streamline permit rules and procedures.

WHAT IT MEANS

Bill 17 is sweeping in scope; but the one thing it’s not is innovative. The bill is essentially a “greatest hits” collection of changes made in other parts of Canada. Its purpose is not to establish Alberta as a brave new world of employment law but to make up for nearly 3 decades of legislative neglect. That’s a huge deal if you happen to do business in Alberta and nowhere else. But for employers subject to regulation in not only Alberta but other jurisdictions, Bill 17 is likely to pose only relatively minor challenges.