Sources of Employment Law
Employment law is governed by three main sources of law: (1) the common law; (2) contracts and (3) by statute. Many of the rules regulating Canadian workplaces are contained in the employment standards statutes. To determine what statute applies to your business or situation, regard must be had to your jurisdiction and the nature of the business of the operation. If the business is a federal work or undertaking, like a transportation company, an airline or a telecommunications company, your operation may be covered by the Canada Labour Code and the federal employment statute. For other businesses, provincial employment standards legislation will most likely apply.
Content of Employment Standards Legislation
Employment standards statutes regulate minimum standards in respect of such things as wages, hours of work, rest periods, vacation and vacation pay, public holidays, overtime and certain leaves of absence. This legislation also dictates the minimum requirements for notice or pay in lieu of notice during the applicable statutory notice period, and obligations of an employer in the context of a mass termination. Employment standards statutes typically provide for complaint procedures in respect of their provisions and mechanisms to enforce employees’ rights. These statutes also provide for reprisal protection to employees bringing complaints in respect of their rights.
For federal works or undertakings, Part III of the Canada Labour Code specifies the minimum standards applicable to workplaces and the rights and obligations arising in respect of employment standards. Complaints of unjust dismissal under this Part may be commenced in appropriate circumstances and can lead to reinstatement.
These standards apply to your workplace and your business regardless of any adoption in a policy manual. Many employers also offer better rights and benefits than those standards minimally dictated by employment standards legislation. Where such greater right or benefit is provided, a new floor is established.
Key Provisions and Due Diligence
A regular review of your workplace’s employment practices and policies will assist in ensuring that your business is in compliance with employment standards legislation. If your business has yet to do such a review, the below is a list of topics to help get you started:
Hours of Work/Overtime
- what are employees’ regular hours of work?
- are these hours regularly observed?
- do employees work overtime? is such overtime sanctioned?
- is overtime paid?
- if not, is there a mechanism by which the employer can obtain approval for averaging overtime hours?
- which employees are exempt from these provisions?
- do employees receive the mandated rest or eating periods during the workday?
- do employees receive the minimum rest period between shifts?
- should I enter into a specific arrangement with employees regarding rest/eating periods?
- what are the recognized public holidays?
- are employees paid public holiday pay?
- how much vacation are employees entitled to and what do we provide?
- how is vacation pay earned?
- can we require vacation time to be earned before it is taken?
Leaves of Absence
- what are the recognized protected leaves of absence in my jurisdiction?
- is there any requirement that these leaves of absence be paid?
- what is the minimum notice/pay in lieu of notice requirement?
- what amounts are payable upon termination?
- do benefits have to continue in the notice period?
- is a bonus payable during the notice period?
- is severance pay payable?
- Employment Standards Legislation Summaries [Federal, Alberta, British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland & Labrador, Nunavut, Northwest Territories, Yukon]
The Federal jurisdiction and each province’s statute have specific provisions and minimum standards. Regard must be had to each statute to ensure that your workplace is in compliance with at least the minimum standards.