Canada: Alberta Government Makes Significant Changes To Workplaces Through Bill 32

On July 29, 2020, Bill 32, the Restoring Balance in Alberta's Workplaces Act ("Bill 32") received Royal Assent.

Bill 32 proposes several key changes to Alberta's Employment Standards Code and Labour Relations Code. This post outlines the most significant changes.

Employment Standards Code

Averaging Arrangements: Employers of non-unionized employees may impose an averaging arrangement for hours of work used to determine employees' entitlement to overtime, without obtaining an employee's agreement. Employers must provide at least two weeks' written notice of the averaging arrangement, unless otherwise agreed upon by the employee and the employer. The time period used for an averaging arrangement can now range from one week up to 52 weeks, and employers must provide a schedule that sets out the daily and weekly hours of work under the averaging arrangement subject to amendments by the employer in accordance with the averaging arrangement. If the bargaining agent agrees to an averaging arrangement as part of the collective agreement the unionized employees may become subject to an averaging arrangement.

Rest Periods: Employees are still entitled to 30 minute rest periods for every five hours worked; however, employees will be able to take the rest period either within, or immediately following, the five hours of work, or at any other time agreed upon by the employer and the employee.

Vacation Entitlement and Leaves: When calculating an employee's entitlement to vacation time, leave periods are now explicitly included when calculating the employee's years of service for the purposes of vacation time entitlement.

Temporary Layoff: The temporary layoff period will be extended from 60 days to 90 days within a 120-day period. Following the 90-day period, a temporary layoff will be deemed a termination. Specific timing requirements for temporary layoff notices will be removed. If the temporary layoff is related to COVID-19, then under Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020, which came into force on June 26, 2020, employees can be laid off for up to 180 consecutive days before they are deemed to be terminated.

Group Termination: Group termination rules have been simplified and the notice period for group terminations is now the same regardless of the number of employees to be terminated, so long as it exceeds 50 employees within a four-week period. Under the new amendments, an employer who intends to terminate 50 or more employees at a single location within a four-week period must give the Minister written notice at least four weeks before the effective date of the first termination. If the employer is unable to do so, the employer must provide written notice as soon as is reasonable and practicable in the circumstances.

Final Pay Deadline: The timelines for an employer to issue final pay following a termination have been simplified. Under the new amendments, when an employee's employment is terminated, regardless of whether it is initiated by the employer or the employee, the employer must pay the employee their final earnings either: (i) 10 consecutive days following the end of the pay period in which the termination of employment occurs; or (ii) 31 consecutive days following the last day of employment. The employer has the discretion to choose between the two deadlines for issuing final pay.

Holiday Pay Calculations: Employees will still be entitled to general holiday pay; however, simplified rules for calculating holiday pay may change the amount of pay to which the employee is entitled. Average daily wage will no longer include vacation pay and general holiday pay when calculating an employee's holiday pay. Average daily wage will be calculated using the employee's total wage, averaged over the number of days they worked (i) four weeks immediately before the general holiday; or (ii) four weeks ending on the last day of the pay period that occurred just before the general holiday.

Overpayment Recovery: If an employee is overpaid due to a payroll calculation error or vacation pay being paid in advance of the employee being entitled to it, then an employer can now recover the overpayment within six months of the error being made. Employee consent will no longer be required for overpayment recovery; however, the employer will be required to provide the employee advance written notice.

Deviation From Rules Through Collective Agreements: Employers and unions may now deviate from certain employment standards (e.g., hours of work, notice of work times, etc.) through the terms of a collective bargaining agreement.

Youth Employment: Youth employees (13 and 14 years old) are permitted to do more types of jobs without the employer first being required to obtain a permit (janitorial work in an office, coaching and tutoring as well as some jobs in food service).

Penalties for Breaches: If an employer breaches the Employment Standards Code, they may still be issued a penalty; however, the penalty amount may be adjusted on a case-by-case basis and employers will have more time to pay the penalty issued.

Variances and Exemptions: Under more flexible rules, it will be easier and quicker for employers to get approval for, and renew, a variance or exemption under the Employment Standards Code.

The majority of the changes to the Employment Standards Code under Bill 32 will come into force on November 1, 2020, except for the changes to the group termination notice requirements, the length of the temporary layoff period and the flexible rules to apply for variances, which came into force on August 15, 2020.

Labour Relations Code

Reverse Onus Rules: Under Bill 32, the reverse onus on the employer in section 149(2) of the Labour Relations Code is limited to cases of dismissal or discharge only. Bill 32 also adds a reverse onus for unions in cases where they used intimidation or coercion in organizational campaigns, or breached provisions relating to opt-in.

Renewal of Collective Agreement: Employers and unions can now renew a collective agreement before it expires upon consent of the employees.

Union Certification and Revocation Timelines: Specific timelines for certification and revocation processes will be removed; however, applications for certification and revocation should be processed as soon as possible, and no later than six months after the date of the application. The six-month deadline may be extended if there are exceptional circumstances.

Consequences for Prohibited Practices by Unions: Unions may be refused certification if they conduct certain prohibited practices which have the effect of interfering with a certification campaign. A union would then be required to wait six months to apply for certification, instead of 90 days.

Secondary Picketing: If a union wishes to engage in secondary picketing, the union now must apply for, and be granted, an order from the Alberta Labour Relations Board in order to engage in secondary picketing activity at any location aside from the employees' workplace. The Alberta Labour Relations Board will also have the authority to make declarations within the order governing secondary picketing activity.

Union Dues for Political Activities: Unions are now required to disclose the amount or percentage of union dues put towards political activities, charities or non-governmental organizations, or general social causes or issues. Employees will still be required to pay union dues used for core union activities; however, employees will not be required to pay the portion of the union dues used for political activities, unless they elect to do so.

Union Financial Statements: Unions are now required to provide their financial statements to their members each fiscal year.

Remedial Certification: Under Bill 32, the Alberta Labour Relations Board is still permitted to certify a trade union as a remedy to a prohibited practice by the employer resulting in an improper representation vote; however, the Alberta Labour Relations Board may now only do so in circumstances where no other remedy is sufficient.

Refusal to Certify: Under Bill 32, the Alberta Labour Relations Board is still permitted to refuse to certify a trade union where a prohibited practice by the trade union results in an improper representation vote; however, the Alberta Labour Relations Board may now only do so in circumstances where no other remedy is sufficient.

Illegal Strike and Lockouts: The Alberta Labour Relations Board may now direct the employer to suspend union dues for employees participating in an illegal strike, or direct the employer to collect and remit union dues where there is an illegal lockout. Employers may now ask the Alberta Labour Relations Board to file an order granted with respect to an illegal strike or picketing with the Court.

Addition of Nurse Practitioners: Nurse practitioners are now included in the Labour Relations Code.

Arbitration: Arbitrators will no longer be able to provide relief from time limits set out in the collective agreement for grievance processes or arbitration procedures. Any collective agreement provision permitting binding arbitration during the negotiation of a new collective agreement for public post-secondary academic staff is void. The Alberta Labour Relations Board may now order that non-post-secondary disputes be resolved through arbitration, and no longer have to consider whether unfair labour practices occurred in the consideration of directing the matter to be resolved by arbitration. When making this decision, the Alberta Labour Relations Board will focus on a party's refusal to bargain collectively and a failure to make reasonable efforts to conclude a collective agreement.

Removal of the Legislative Reasonableness Standard: Bill 32 has removed the legislative reasonableness standard of review with respect to the Alberta Labour Relation Board's ability to review a decision or award of an arbitrator, arbitration board or other body.

Powers of the Board and Chairs: Under Bill 32, a Chair or Vice-Chair may now sit alone to review a decision or award of an arbitrator, arbitration board or other body. A Chair or Vice-Chair may also sit alone in circumstances where it is deemed necessary by the Chair of the Alberta Labour Relations Board due to an emergency. The Alberta Labour Relations Board also now has the authority to dismiss a complaint regarding fair representation where the Board determines that a fair and reasonable settlement offer was made.

Construction Sector Changes: A number of changes have been introduced under Bill 32 which are specific to the construction industry. If you would like more detail on these industry specific amendments, please contact a member of our Labour & Employment team.

Many of the changes to the Labour Relations Code under Bill 32 took effect on July 29, 2020, except the following changes which will take effect upon proclamation:

• Employee access to union financial statements and ability to opt-in for union dues;
• Early renewal of collective agreements;
• Rules regarding secondary picketing;
• "All-employee" units in the construction sector;
• Building trades of Alberta project agreements;
• Removal of the legislative reasonableness standard of review; and
• The inclusion of nurse practitioners in the Labour Relations Code.

Please note that this article only highlights a limited selection of the many changes made through Bill 32. All employers governed by Alberta labour and employment legislation should be mindful of the full list of changes, which can be reviewed here, and the significant effect they could have on your workforce.

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.