On May 27th, the Government of Alberta introduced Bill 2 (An Act to Make Alberta Open for Business).
Bill 2 was promised during the election to reverse some of the NDP legislative changes that made labour and employment laws more friendly to unions, less democratic, and more onerous and expensive for employers to employ workers.
If passed unchanged, Bill 2 will deliver the following changes to Albertans for the purpose of fostering job creation. It will:
- return to previous holiday pay requirements which distinguished
between whether or not the holiday fell on a regular work day. The
legislative changes made in 2018 added costs to employers by
requiring them to pay holiday pay to employees for days the
employees would not have worked anyway (e.g. a casual employee who
might not work much at all would still be entitled to holiday pay
for all statutory holidays). These changes were a disincentive to
employing more workers. The new legislation returns to the previous
approach by which holiday pay is only required when the holiday
falls on a day which would be a regular work day for an employee.
If the employee does not work on a holiday that is a normal work
day, the employee is entitled to the average daily wage, which is
still defined as 5% of an employee's wages, vacation pay and
general holiday pay earned in the 4 weeks immediately preceding a
general holiday. If the employee works on a holiday that is a
normal work day, the employee is entitled to either: a) the average
daily wage plus 1.5 times the employee's wage rate for each
hour of work; or b) the employee's wage rate for each hour of
work on that day plus one day's holiday, not later than the
employee's next annual vacation, on a day that would normally
be a work day (paid at the average daily wage). If the employee
works on a holiday that is an unscheduled work day for that
employee, the employee is entitled to 1.5 times the employee's
wage rate for each hour of work. When an employee works an
irregular schedule for which it is uncertain whether the holiday
falls on a normal work day for that employee, the employee will be
entitled to holiday pay if the employee worked on the same day of
the week as the holiday in at least 5 of the 9 weeks preceding the
holiday. Eligibility for holiday pay will again require that the
employee has worked for the same employer for at least 30 work days
in the 12 months preceding the holiday. This provision will come
into force on September 1, 2019.
- return to the banked overtime provisions under which banked
overtime can be taken as time off work on an hour for hour basis
(e.g. one hour of overtime is taken as one hour off work). There is
no change to overtime pay at 1.5 times an employee's normal
hourly rate of pay. Banking overtime will still require employee
agreement through Overtime Agreements. The NDP changes required
banked overtime to be taken at 1.5 hours for each hour of overtime
which was a disincentive for employers to agree to banked overtime.
The Government of Alberta will retain one positive aspect of the
NDP changes, which was that 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. This provision will
come into force on September 1, 2019. Time off with pay earned
under the existing legislation that is not provided, taken, and
paid before September 1, 2019 must be provided at 1.5 hours off for
each hour of overtime worked.
- restore the mandatory secret ballot vote for union
certification applications. The 40% support required to have a vote
will remain but "card-based certification" based on 65%
support will be removed. 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.
- reduce the time allowed for unions to sign up new members for
certification applications from 6 months back to 90 days as it was
before changed in 2017 (also effective May 27, 2019).
- strengthen the marshalling provisions of the Labour Relations
Code to also apply to Human Rights applications and clarifying that
it applies 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 were
a positive change that 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.
- establish a program to provide support and assistance to individual employees 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. Unions and employers usually have legal guidance in respect to matters under this legislation, but individual workers often do not. These changes will help employees understand and exercise their rights in respect to both employers and unions. This provision comes into force on October 1, 2019, and the details of this program remain to be determined.
Some of the changes may depend upon regulations, in addition to legislation.
Furthermore, the Government also introduced changes to the minimum wage by Order in Council that allows for a lower minimum wage for workers under age 18 who are still developing skills and experience. The change reduces the disincentive inherent in minimum wage legislation against employing young lower-skilled workers. The general $15 per hour minimum wage will remain, and the lower experienced wage will be $13 per hour. This new minimum wage takes effect June 26, 2019. The lower wage will apply for the first 28 hours worked by a student while school is in session and all hours when school is on break (e.g. summer). They must be paid $15 per hour for all hours worked above 28 when school is in session.
The Government is also expected to appoint a Minimum Wage Expert Panel to consult with workers, employers, and policy experts, analyze and publish economic data on the impact of minimum wage increases, and assess the potential impact of a reduced minimum wage for hospitality workers (as Alberta had in the past and as exists in Ontario, Quebec, and B.C.).
The Government has explained that it wanted to reduce the regulatory burden on employers quickly, and by introducing Bill 2 it delivers on its platform. However, as the Government said in the Speech from the Throne, it intends to make other labour and employment law changes in the autumn. It will require more time to develop these changes. These changes are anticipated to include the following items:
- changes to essential services legislation to address the
current ban on using any replacement workers at employers
involved in essential services.
- protection to workers against being forced to fund causes and
political parties through union dues without explicit opt-in
approval.
- changes to remedial certification. The NDP created an ability for the Labour Board to order certification without an employee vote in cases of employer unfair labour practices.
There may be many other possible changes. McLennan Ross will continue to keep you informed of new developments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.