Canada: Noteworthy Changes To Alberta Employment And Labour Standards Legislation

On July 29, 2020, Bill 32: Restoring Balance in Alberta's Workplaces Act, 2020 (Bill) received royal assent in Alberta. This Bill amends the Alberta Employment Standards Code (ESC) and Labour Relations Code (LRC). The following amendments, which are set to come into effect at the various times noted below, are some of the noteworthy changes to these statutes:

EMPLOYMENT STANDARDS CODE

• Termination Pay. Employers can choose from the following longer time periods to provide termination pay: (1) 10 consecutive days after the end of the pay period in which termination occurred; or (2) 31 consecutive days after the last day of the employee's employment.
• Deductions from Pay. Employers may now deduct from the earnings of an employee, without his or her consent when: (1) there has been an overpayment of earnings resulting from a payroll calculation error; and (2) vacation pay was paid to the employee in advance of the employee being entitled to it.
• Rest Periods. There is now more flexibility when scheduling rest periods. An employer can now choose to provide an employee a rest period of 30 minutes or more either within or immediately following a five-hour shift, instead of being required to provide it within the five-hour shift. For shifts longer than 10 hours, two 30-minute rest periods are required.
• Averaging Arrangements. Employers can now implement an averaging arrangement, which is an arrangement that allows employers to schedule employees to work longer hours per day without providing overtime, without employee consent.
• Holiday Pay. Employers now have more flexibility in calculating an employee's average daily wage for the purposes of determining statutory holiday pay. Employers can look to the four-week period before the holiday or the four-week period ending on the last day of the pay period before the holiday.
• Vacation Pay. Legislative leaves must now be included in the calculation of an employee's years of employment for the purposes of determining vacation pay.
• Group Termination Notice. Employers need only provide the Minister of Labour and Immigration (Minister) four weeks' prior notice, or as soon as is reasonable, when they plan to terminate 50 or more employees in a four-week period (opposed to longer periods of notice determined in accordance with the number of affected employees). A copy of such notice no longer needs to be provided to affected employees or unions.
• Temporary Layoff Periods. The temporary layoff period (the period in which a temporary layoff from employment is permitted without triggering a deemed termination of employment) has been extended from 60 days within a 120-day period to 90 days within a 120-day period; the maximum temporary layoff period for layoffs relating to COVID-19 continues to be 180 consecutive days. There is no longer a requirement to provide advance notice of layoffs to employees.
• Youth. The types of jobs that youth can do without needing a government permit has been expanded to include food services industry roles (while working with someone who is 18 years or older), light janitorial work in offices, coaching and tutoring.
• Collective Agreements. Employers and unions can now agree to override certain ESC provisions relating to maximum daily hours of work, shift changes, temporary layoffs, hours of work averaging and days of rest under a collective agreement.
• Variances and Exceptions. The Minister and Director of Labour have increased authority to grant variances and exceptions in certain circumstances.

The listed changes set out above take effect on November 1, 2020, with the exception of the following, which take effect on August 15, 2020: (1) changes to group termination notice requirements; (2) changes to the temporary layoff periods; and (3) changes for variances and exceptions.

LABOUR RELATIONS CODE

• Board Emergency Powers. A single chair or vice-chair can now hear any matter in an emergency, without the parties' consent.
• Board Powers. The Alberta Labour Relations Board (Board) now has the expanded power to: (1) dismiss applications without a hearing where an application has been filed with improper motives or is otherwise an abuse of process; (2) summarily dismiss a duty of fair representation application where the applicant worker has rejected a reasonable settlement offer; and (3) hear more cases with the chair or vice-chair sitting alone.
• Union Finances. Unions must now provide members with an annual financial statement as soon as possible following the union's fiscal year end. Union members may now also seek relief through a complaint process if the union fails to provide the annual financial statement.
• Union Dues. Unions are now required to disclose the percentage of union dues that relate to certain union activities, such as political activities. Similarly, members are now only required to pay for the portion of union dues that relate to the representation of employees, or the “core” union activities.
• Picketing. Two important changes were made to picketing obligations under the LRC: (1) the Bill has made clear that picketing cannot obstruct or impede a person from crossing the picket line; and (2) unions must now get approval from the Board before engaging in secondary picketing (picketing at locations other than a normal place of employment).
• Illegal Strikes or Lockouts. In the event of an illegal strike, the Board can now suspend the deduction and remittance of union dues for up to six months. Similarly, in the event of an illegal lockout, the Board can require employers to pay employees' union dues.
• First Contract. If a dispute arises between an employer and a union during the negotiation of a first collective agreement, or “first contract,” the Board can now only refer the dispute to arbitration as an option of last resort. The Board will have to be satisfied that: (1) arbitration is necessary; (2) the employer or union failed to comply with the LRC; and (3) no other remedy would be sufficient to counteract the effects of the employer or union's conduct.
• Reverse Onus Rule. The “reverse onus rule” for employers (when employers must demonstrate they did nothing wrong when allegations are made against them) is now limited to cases involving employee termination. Unions will now face the reverse onus rule when it is alleged that the union coerced, intimidated, threatened, promised or unduly influenced an employee in their membership or activity in the union.
• Collective Agreement Renewals. The Bill has clarified that collective agreements can be renewed early when employees vote to enter the new collective agreement after being informed by their union that such renewal will prevent a competing union from applying for certification.
• Consequences for Unfair Practice. Unions may now be refused certification if they conduct certain unfair labour practices. In such a case, a union must wait six months—instead of 90 days—to re-apply for certification.
• Nurse Practitioners. Nurse practitioners can now organize and collectively bargain.
• Construction. Changes for the construction industry include: (1) existing collective agreements will remain in force after a successful union raid; (2) industrial unions will be able to form “all employee unions” by representing all employees who work for the same employer, regardless of their trade; (3) the Board is able to apply the “build-up principle” to approve a union's application to represent employees, which accounts for circumstances where a larger workforce is expected in the future; and (4) the Minister, instead of the Provincial Cabinet, will now have the power to approve major project agreements, along with other changes to the major project rules.
• Arbitrator Powers. Arbitrators can no longer provide relief from the grievance procedure time limits that are set out in collective agreements.

Most changes to the LRC took effect on July 29, 2020; however, the following changes will not take effect until proclamation, the time of which is currently unspecified: (1) access to union financial statements and opt-in for union dues; (2) early renewal of collective agreements; (3) rules for secondary picketing; (4) “all-employee” units in the construction industry; (5) project agreements; (6) the Board's standard of review; and (7) nurse practitioners.

Originally published by Blakes, August 2020

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