Canada Labour Code PDF - Employment Law in Canada

Canada Labour Code 4 LEARNING OUTCOMES After completing this chapter, you will be able to: Understand which employers and employees are governed by the Canada Labour Code (CLC). Iden...

Canada Labour Code 4 LEARNING OUTCOMES After completing this chapter, you will be able to: Understand which employers and employees are governed by the Canada Labour Code (CLC). Identify and describe the subjects covered in each of the three parts of the CLC. Describe how employees in the federal sector can form a union. Discuss the right to strike and conditions that must exist before the employer can lock employees out or before employees can go on strike. Explain what is meant by the phrase “unfair labour practice” and give examples. Discuss key rights and responsibilities of employers and employees with respect to workplace health and safety. Discuss the unique unjust dismissal requirements of the CLC. Discuss the concept of danger as it is defined in part II the CLC and the legal test used to determine whether or not danger exists. 91 92  Part I The Legal Framework Explain what is meant by the defence of “reasonable care and due diligence.” Explain how minimum wage requirements work for employees covered by part III of the CLC. Identify the different types of leaves that are available to employees covered by the CLC. Discuss how part III of the CLC is enforced. Introduction The Canada Labour Code (CLC) is a unique piece of legislation that applies to employers and employees that operate under the jurisdiction of the federal government. This normally includes industries that are trans-provincial and trans-territorial (operate across provincial or territorial boundaries) or are directly related to the work that is done by the Government of Canada (e.g., Canada Post or the Canada Revenue Agency). In general, this means that if you are an employee of the federal government, or an employer or employee in the follow- ing industries, you are governed by this legislation (Government of Canada, 2024): Federally regulated private sectors air transportation, including airlines, airports, aerodromes and aircraft operations banks, including authorized foreign banks grain elevators, feed and seed mills, feed warehouses and grain-seed cleaning plants First Nations band councils and Indigenous self-governments (certain activities) most federal Crown corporations, for example, Canada Post Corporation port services, marine shipping, ferries, tunnels, canals, bridges and pipelines (oil and gas) that cross international or provincial borders postal and courier services radio and television broadcasting railways that cross provincial or international borders and some short-line railways road transportation services, including trucks and buses, that cross provincial or international borders telecommunications, such as, telephone, Internet, telegraph and cable systems uranium mining and processing and atomic energy any business that is vital, essential or integral to the operation of one of the above activities Federally regulated public sector the federal public service Parliament (such as the Senate, the House of Commons and the Library of Parliament) Private-sector firms and municipalities in Yukon, the Northwest Territories and Nunavut Although this seems like it would include a large number of employers and organiza- tions, in actual fact this constitutes only about 6 percent of employees in Canada. It is a common misunderstanding that the CLC supersedes provincial labour codes. This is not true and can lead employers and employees astray when they are attempting to understand their rights and responsibilities with respect to the employment relationship. The CLC is composed of four parts, three of which we will discuss in this chapter, as part IV deals with administrative matters. Part I of the CLC addresses industrial relations issues, including unionization, the right to collective bargaining, and dispute resolution in unionized, federally regulated organizations. The provincial counterpart to part I of the CLC in Alberta is the Alberta Labour Relations Code, and in British Columbia (BC) it is the BC Labour Relations Code. Part II of the CLC addresses occupational health and safety in the federal sector and contains provisions that are similar, though not identical to,  Chapter 4 Canada Labour Code   93 provincial legislation. Part III of the CLC addresses issues that are included in provincial employment standards legislation (in BC, the Employment Standards Act, and in Alberta, the Employment Standards Code), including hours of work, wages, vacations, and holidays. There are some unusual elements to part III that are not contained in most provincial legis- lation that will be discussed later in the chapter. A chapter addressing federal employees is necessary because human resources managers in Alberta and BC need to be aware that their employers may in fact be operating in indus- tries that are covered by the CLC, even if their head office or the majority of their business is conducted within one of the two provinces. Some larger corporations may have some parts of the business governed by provincial employment statutes while other parts are governed by federal employment law. It is therefore important that students know which legislation applies to which employees and which rules apply to them. The issue of jurisdiction is some- times a contentious one, as illustrated by Marszalek v Little Red River Board of Education. First Nation Reserve School Not a Federal Undertaking CASE Marszalek v Little Red River Board of Education, CLAD No 32 IN Facts POINT Marszalek was a teacher at a school on a First Nation reserve run by the Little Red River Board of Edu- cation (LRRBE). She was dismissed from her position and filed a complaint of unjust dismissal. When the matter went to arbitration under the CLC, the employer, LRRBE, filed an application with the arbi- trator arguing that the arbitrator lacked jurisdiction because the school board’s operations were not considered a “federal work, undertaking or business under s. 167 of the CLC.” LRRBE received funding from both the Government of Canada and the Government of Alberta. LRRBE was established by the chief and council of the Little Red River Cree Nation for the purpose of overseeing the administration of primary and secondary education. It operated 4 schools, employed some 200 employees, including 100 teachers certified by the Government of Alberta, and was responsible for about 1,400 students. Marszalek’s salary was determined by a statement of qualifications issued by the Alberta Teacher Qualifications Service. The students received an Alberta Student Number and, upon completion of the required examinations and courses, they received an Alberta high school diploma. Marszalek argued that the CLC should apply because she was First Nations, the Board was run by First Nations, and the chief and council oversaw the school board. The LRRBE argued that both it and its employees were not subject to the CLC because in order for it to apply, an entity must be a “federal work, undertaking or business” as defined in sections 2 and 167(1) of the CLC. The LRRBE argued that the appropriate legislation was Alberta’s Employment Standards Code, therefore the CLC should not apply. Relevant Issue Does the Little Red River Board of Education fall under federal or provincial jurisdiction for ­employment-related statutes? Decision The adjudicator, citing other case law including NIL/TU, O Child and Family Services Society v BC Govern- ment and Service Employees’ Union (NIL/TU, O), noted that under a standard functional test, labour rela- tions are presumptively a provincial matter, and the nature of the employer, an education provider, was under provincial legislation. The Supreme Court of Canada in NIL/TU, O, although in dissent, described the “core” of section 91(24) of the Constitution Act, specifically, “matters that go to the status and rights of Indians,” as admittedly narrow. Chief Justice McLachlin, as she then was, added in her dissent that Indians are members of the broader population and, therefore, in their day-to-day activ- ities, they are subject to provincial laws of general application. Only where the activity is so i­ntegrally related to what makes Indians and lands reserved for Indians a fundamental (Continued on next page.) 94  Part I The Legal Framework federal responsibility does it become an intrinsic part of the exclusive federal jurisdiction, such that provincial legislation is excluded. (at para 73) Citing various cases, including the Supreme Court cases, the adjudicator outlined the current func- tional test for determining whether a labour dispute can be considered under federal jurisdiction under the CLC as follows (at para 42): a. Firstly, labour relations are presumptively within the jurisdiction of the provinces; b. When attempting to rebut this presumption and make arguments that the business in question is in fact a federal work or undertaking, it is necessary to consider what the nature of the business being conducted is, as opposed to who the business benefits; c. This analysis is no different in the Aboriginal context under s. 91(24) than it would be under any of the other heads of power. The test that is to be considered when determining whether an undertaking’s labour relations are governed federally or provincially is the functional test; d. The first step in the determination of which government is to govern over the labour rela- tions is the functional test; only if the functional test is inconclusive, can the analysis proceed at all; e. The second stage of the enquiry, if required, is to determine “whether the provincial regu- lation of that entity’s labour relations would impair the ‘core’ of that head of power” [i.e. the “core of indianness” under 91(24) of the Constitution Act, 1867 that has been argued in numerous First Nations cases]; and f. The functional test requires inquiry into three areas when determining whether a business or employer constitutes “federal work, undertaking or business” under the Canada Labour Code: i. The nature of the entity in question ii. The daily operations of the entity in question; and, iii. The habitual activities of the entity in question as a “going concern” without regard for exceptional or casual factors. Applying the functional test as outlined in NIL/TU,O, the adjudicator applied that test to this case as follows (at para 56): a. Firstly, labour relations are presumptively a provincial matter. b. The nature of the entity in question (LRRBE) is that of an education provider under prov- incial legislation. c. The operations and habitual activity of the entity is to deliver educational services, which is normally a provincially regulated matter. For example, all LRRBE educators are required to adhere to the Alberta Teaching Quality Standard—Ministerial Order #016/97. Complaints with ­respect to the conduct of LRRBE educators are administered by the Registrar at Alberta Educa- tion and in accordance with the Practice Review Complaint Appeal Regulation. The curriculum for LRRBE students in all LRRBE schools is set by the Government of Alberta. The adjudicator found that the LRRBE’s activities are not characterized as “so integrally related to what makes Indians and lands reserved for Indians” so as to satisfy the second arm of the relevant legal test. He found that the LRRBE’s functions are not characterized as essential, integral, or vital to the federal powers over “Indians and Lands reserved for Indians.” He found that the LRRBE is clearly not a federal undertaking and, accordingly, the complaint falls outside the jurisdiction of an adjudi- cator appointed pursuant to the CLC. This meant that the matter did not fall under federal jurisdiction or federal laws. The application was allowed, and the adjudicator did not proceed with the hearing. In the remainder of this chapter we will explore each of the three parts of the legislation and provide examples of important cases that have helped define the parameters of the law and set precedents upon which future cases are likely to be decided. It should be noted that while decisions made by adjudicators applying the CLC may be cited in other juris- dictions, they will not be as relevant or persuasive as decisions made under the relevant  Chapter 4 Canada Labour Code   95 provincial legislation. In other words, students should not construe the CLC as similar to the Canadian Charter of Rights and Freedoms (Charter), with which all other provincial legislation must comply. Canada Labour Code: Part I—Industrial Relations The preamble to part I of the CLC establishes the goals and objectives of the legislation and reflects an approach that balances the needs of the employer with the needs of employees to promote “the common well-being” and labour peace. The right of employees to join a union to bargain collectively with their employers, which is considered by the United Nations as a fundamental human right, is affirmed in the preamble: WHEREAS there is a long tradition in Canada of labour legislation and policy designed for the promotion of the common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes; AND WHEREAS Canadian workers, trade unions and employers recognize and support freedom of association and free collective bargaining as the bases of effective industrial relations for the deter- mination of good working conditions and sound labour-management relations; AND WHEREAS the Government of Canada has ratified Convention No. 87 of the International Labour Organization concerning Freedom of Association and Protection of the Right to Organize and has assumed international reporting responsibilities in this regard; AND WHEREAS the Parliament of Canada desires to continue and extend its support to labour and management in their cooperative efforts to develop good relations and constructive collective bar- gaining practices, and deems the development of good industrial relations to be in the best interests of Canada in ensuring a just share of the fruits of progress to all. Part I of the CLC applies to all individuals employed in a federal undertaking (as defined above), their employers, and any union composed of those employees. The interpretation of part I of the CLC is guided by several regulations, including the Canada Industrial Relations Board Regulations and the Canada Industrial Relations Regulations. Canada Industrial Relations Board: Powers and Duties Division II of part I of the CLC is the portion of the legislation that establishes the Canada Industrial Relations Board (CIRB). The purpose of the CIRB is to settle any disputes relating to part I of the CLC. In other words, the main job of the CIRB is to deal with issues that arise in federally regulated workplaces where employees are already or wish to become unionized (or to decertify an existing trade union). This means the CIRB primarily deals with certifica- tion of trade unions, bargaining-unit size and composition, disputes that arise as a result of collective bargaining, strikes and lockouts, and unfair labour practices. In settling disputes regarding these issues, the CIRB has several powers, which are estab- lished in section 16 of part I and include the following: 1. conducting hearings; 2. compelling the attendance of witnesses to give testimony and to provide written evidence or other documents as requested by the CIRB; 3. examining any evidence put forward by the parties; 96  Part I The Legal Framework 4. entering an employer’s premises to observe work, materials, machinery, or other articles and to interrogate any person regarding a matter that is before the CIRB; 5. ordering or conducting representation votes for the purpose of certifying or decer- tifying a trade union; 6. determining whether the size and structure of a bargaining unit is appropriate for collective bargaining; 7. determining whether any unfair labour practice has been committed by the parties to a dispute; and 8. where an unfair labour practice has been committed, making legally binding deci- sions and ordering remedies as provided by the CLC. Note that the CIRB does not enforce the orders it makes; enforcement occurs through the federal courts. In the remainder of this section, we will review the basic requirements associated with the acquisition and termination of bargaining rights, collective bargaining, strikes and lock- outs, and unfair labour practices. Acquisition and Termination of Bargaining Rights Any group of employees may form or join an existing trade union, and although it is not required, that union may apply for certification with the CIRB. Certification establishes that the union is the exclusive bargaining agent for the employees and will represent employees in negotiations with the employer regarding wages and working conditions. This means that employees cannot negotiate for themselves, and other uncertified unions cannot attempt to negotiate on behalf of the employees. Certification ensures that the status of the union is protected, and any disputes that arise between the unionized employees and the employer are subject to the rules and regulations established in the CLC. To become certified, the applicant union must demonstrate to the CIRB that a sufficient number of employees in a proposed bargaining unit support the union’s application for representation rights. The union demonstrates support by collecting signed union member- ship cards from employees, which confirm each employee’s desire to be represented by the union. If the CIRB is satisfied that a majority of the employees in the proposed bargaining unit have signed union membership cards, the CIRB will certify the union, and all employ- ees in the bargaining unit become unionized. If a union’s application demonstrates that it has the support of not less than 35 percent and not more than 50 percent of the employees in the proposed bargaining unit, then the CIRB will order that a secret ballot vote be taken among the employees in the unit. The outcome of a secret ballot vote will be determined on the basis of the ballots cast by the majority of employees who participate in the vote. You may wonder why employees would choose to unionize. The answer is not a simple one. However, it is most likely to occur when employees feel unfairly treated in terms of the economic benefits they receive or because they do not feel they have a voice that is being heard by the employer. By choosing to unionize and becoming certified, the employees have more power than when they bargain individually. Certification enables the employees to coordinate their activities, share knowledge, and use economic sanctions like job action or strikes (or the threat of economic sanctions) to buttress their negotiating position when bargaining is not progressing. Employers have similar rights under the CLC, including the right to join an employers’ organization for the purpose of bargaining and the right to use economic sanctions (locking employees out) when bargaining is at an impasse. The CLC  Chapter 4 Canada Labour Code   97 establishes rules regarding the exercise of these sanctions, with the overall goal of maintain- ing a level playing field between the parties to promote free and fair collective bargaining over the terms and conditions of employment. Unions can be decertified in almost the same way they become certified. Employees wishing to decertify a union that represents them must establish that a majority of employ- ees in the bargaining unit support decertification (referred to as “revocation” in the CLC). If the employees’ application demonstrates majority support, the CIRB will usually order a secret ballot vote, the outcome of which will be determined on the basis of the ballots cast by the majority of employees who participated in the vote. In some instances, for example where the incumbent union does not challenge the application, the CIRB may revoke the certification without conducting a vote, but this is very rare. Decertification may also occur if there is evidence that certification was obtained by fraud. Decertification cannot normally happen during a lawful strike or lockout. If an employer sells all or part of a business, the union will continue to be the bargaining agent with the new employer. Therefore, an employer cannot decertify a unionized work- force by selling the business. Furthermore, the new employer is bound by any terms and conditions that are in a collective agreement (the group employment contract) at the time of the sale. Collective Bargaining and Collective Agreements Section 48 of the CLC requires that the parties bargain for the purpose of entering into a collective agreement. Collective bargaining normally begins after a union is newly certified, or within the last four months of an existing collective agreement where there is an on- going union – management relationship. Either of the parties may give notice that they are prepared to commence bargaining. Where notice has been given, the parties have 20 days to meet and begin. Employers are not allowed to alter any terms and conditions of employ- ment during the bargaining period, even if the collective agreement expires before a new agreement can be reached. Another way of saying this is that the parties follow the old collective agreement until they successfully agree on the terms and conditions for the new agreement. The contents of a collective agreement, like the contents of any other contract of employ- ment, are generally up to the two parties to negotiate. However, in the case of collective agreements subject to the CLC, there are some special requirements. First, if an em- ployer plans to introduce a technological change that will substantially and adversely alter employment conditions or security for a number of employees, the legislation prescribes a procedure for providing notice and reopening the collective agreement to deal with the technology issue. Second, section 57 of the CLC requires that every collective agreement include a provi- sion for settling disputes about the interpretation, application, administration, or contra- vention of the collective agreement without resorting to work stoppage. This is generally referred to as a grievance process and means that the parties have to use the grievance mechanism to solve disputes when a collective agreement is in force, and it is illegal to strike during the life of a collective agreement. If a collective agreement does not include a griev- ance process, the CIRB will appoint an arbitrator (or arbitration board) to settle any issues that arise. An arbitrator has powers similar to those of the CIRB, and the decision made by the arbitrator is legally binding on the parties. 98  Part I The Legal Framework A final collective agreement clause that is mandated by the CLC is compulsory dues check-off. This clause requires that employers collect union dues from the wages of each em- ployee in the bargaining unit. The amount collected is determined by the union and remitted to the union once collected. The only time this does not apply is when an employee has a reli- gious conviction or belief and objects to joining a trade union. In this case, the dues that are collected are sent to a registered charity. This provision exists because the union is required to represent all employees in the bargaining unit, regardless of their preference for membership. This is called the duty of fair representation. Dues check-off exists to prevent “free-riders” from taking advantage of the duty of fair representation, which could eventually drain union coffers. This approach was established in a seminal labour arbitration decision by Rand J (a member of the Supreme Court of Canada) in 1946. The “Rand formula” is now the most common type of union membership clause that exists in Canada (Hebdon & Brown, 2012). Compulsory Union Dues Balance Freedom of Association with CASE Union Responsibilities IN POINT Ford Motor Co of Canada v International Union United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), OLAA No 1 (QL) Facts This is an arbitration case that arose in the context of a bitter strike by the union, which represented some 9,500 employees of the Ford Motor Company in Windsor, Ontario. While decided more than half a century ago, it remains the principle and important establishing case. At issue was a claim by the union for a particular type of union security called a union shop. In a union shop, new employees are required to become members of the union within a certain period of time. This can be contrasted to a closed shop, where the employer can only hire employees that are already part of a union, or an open shop, where employees are not required to become members of the union at all. The claim arose because Ford had accepted union shops with dues check-off in all of its American operations but was refusing to accept the same conditions on the Canadian side of the border. Relevant Issue Should employees in a legally certified bargaining unit be required to be members of the union? Decision Justice Rand determined he could not award a union shop because it could create strife within the union and between the employees and their employer. Furthermore, it would deny individuals the right to work independently of their association with any organized group. In other words, it would deny employees the right to freedom of association, which would later be guaranteed in Canada’s Charter of Rights and Freedoms. However, Rand J also recognized (at para 26) that employees as a whole are beneficiaries of union action, and therefore it would not be inequitable to require that all employees contribute to the expense of maintaining the union and the costs incurred to ensure that their workplace rights are protected: I consider it entirely equitable then that all employees should be required to shoulder their portion of the burden of expense for administering the law of their employment, the union contract; that they must take the burden along with the benefit. Rand therefore awarded dues check-off, without the union shop status that would require employees to become members of the union. In the decision, Rand stated that employers generally have greater power in the employment relationship than any individual employee or even union of employees. To maintain a balance of power between employers and employees, the union must be effective, and for that it must be financially viable. Rand dismissed Ford’s arguments that it would be dangerous or unfair to entrust unions with the financial resources of membership dues, stating “those who control capital are scarcely in a position to complain of the power of money in the hands of labour” (at para 28). And thus, the Rand formula was born.  Chapter 4 Canada Labour Code   99 Conciliation and First Agreements Division V of part I establishes the Federal Mediation and Conciliation Service, which exists to assist unions and employers who are unable to agree on the terms and conditions of a collective agreement. Either party can notify the minister of labour that they are unable to reach a resolution, at which point a conciliation officer will be appointed to work with the parties. The conciliation officer will provide a report with recommendations, though the parties are not bound by the recommendations unless they agree. If agreement is reached, the new collective agreement is drafted and put into effect. If agreement is not reached, the parties may pursue strike or lockout options, which are discussed in detail below. It is not uncommon for employers and unions to have particular difficulty reaching an agreement when it is the first time they have negotiated. When the parties are inexperi- enced, the outcome may more often be a strike or lockout, which can have significant eco- nomic consequences for workers, the employer, and society as a whole. Therefore, the CLC has special provisions for settling first agreements. If the minister considers it necessary or advisable, the CIRB can be directed to inquire into the dispute and determine the terms and conditions of employment for the parties. The employer and union are then bound by these for the life of the collective agreement, which the CLC mandates as two years in this circumstance. At the end of two years, the parties will try again to negotiate on their own. When the CIRB is appointed to settle a first contract dispute, section 80(3) of the CLC requires that (3) [T]he Board shall give the parties an opportunity to present evidence and make representa- tions and the Board may take into account (a) the extent to which the parties have, or have not, bargained in good faith in an attempt to enter into the first collective agreement between them; (b) the terms and conditions of employment, if any, negotiated through collective bargaining for employees performing the same or similar functions in the same or similar circumstances as the employees in the bargaining unit; and (c) such other matters as the Board considers will assist it in arriving at terms and conditions that are fair and reasonable in the circumstances. Strikes and Lockouts If the union and employer cannot reach an agreement and it is not the special circumstance of a first contract, there are several conditions that must exist for them to be in a position to strike or lockout. There are also rules that must be followed during the strike or lockout: 1. The collective agreement must be expired before a strike or lockout can occur. 2. Notice to bargain must have been given. 3. A conciliation officer must have been appointed and had 21 days to work with the parties. 4. The employer must give 72 hours’ notice of a lockout, or the union must give 72 hours’ notice of a strike. 5. For the union to go on strike, they must have had a secret ballot vote among employ- ees in the bargaining unit sometime in the 60 days prior to the strike. The majority must approve of the strike. 6. During a strike or lockout, supply of services, operation of facilities, or production of goods must continue to the extent necessary to prevent immediate and serious danger to the health or safety of the public. 100  Part I The Legal Framework 7. The employer cannot hire replacement workers to do the work of employees in the bargaining unit during a strike or lockout if the purpose is not for legitimate bar- gaining purposes but is to undermine the union’s representational capacity. 8. Employers cannot discipline any employee who refuses to do the work of a striking or locked-out employee. 9. Employers cannot discontinue pension or other benefits during a strike or lock- out as long as the bargaining agent is paying the necessary insurance premiums to maintain those benefits. 10. After the strike or lockout is over, the employer must reinstate employees in the bargaining unit who were on strike or lockout. A strike that violates these conditions is unlawful, and the CIRB can order the employees back to work or the employer to end the lockout. The right to strike has been a contentious issue, particularly in the public sector or where a strike has the potential to disrupt services that are considered essential to public health and safety or to national economic interests. In the past, the government has intervened to order striking postal employees and air- line pilots back to work. However, the Supreme Court of Canada decision in Saskatchewan Federation of Labour v Saskatchewan (Saskatchewan Federation of Labour) seems to have settled the right-to-strike question, firmly establishing that the right to strike is protected by the Charter. Right to Strike Is Protected by the Charter Several years ago, in Saskatchewan Federation of Labour, the Supreme Court of Canada revolutionized labour law in Canada by declaring that the right to strike is protected by the Charter of Rights and Freedoms. Previously, the Supreme Court had held that the Charter protected freedom of association but did not provide a right to engage in collective bar- gaining or the right to strike. However, the Court changed its view and now requires that governments can impose only very minimal limitations on those rights. The case was decided by a 5 – 2 ruling, with Abella J, the judge who wrote the decision for the majority, finding that the law should level the playing field between parties—namely employers and employees—in connection with labour relations disputes, stating “attribut- ing equivalence between the power of employees and employers … turns labour relations on its head, and ignores the fundamental power imbalance which the entire history of mod- ern labour legislation has been scrupulously devoted to rectifying” (at para 56). The ruling followed passage of legislation by the Saskatchewan Party and, in particular, the part of the law that allowed the government to deem certain workers “essential,” which had the effect of denying them the right to strike (such as arbitration). Justice Abella added: “The conclusion that the right to strike is an essential part of a meaningful collective bar- gaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations” (at para 75). IN THE NEWS Letting Managers Unionize A Quebec case involving casino supervisors poses tricky questions about whether employees and managers really have different interests.  Chapter 4 Canada Labour Code   101 In the labour law field, things happen slowly and then suddenly. The law stays largely static for decades at a time, and then—like bad luck and Hollywood blockbusters—big changes arrive in threes. Canadian labour law has seen two such jurisprudential hat tricks since the introduction of the Charter. The first, sometimes referred to as the “original labour trilogy,” saw the Supreme Court of Canada hold forth on freedom of association in a labour context in three companion cases (Reference Re: Public Service Employee Relations Act [Alberta], Public Service Alliance of Canada v Canada and Retail, Wholesale and Department Store Union v Saskatchewan). … Then, in 2015, came the “new labour trilogy”—Mounted Police Association of Ontario (MPAO) v Canada, Meredith v Canada and Saskatchewan Federation of Labour (SFL) v Saskatchewan. Of the three, the decision with the most far-reaching effects was SFL, which saw the court invalidate provincial legislation in Saskatchewan that allowed the government to designate certain public servants as es- sential employees denied the right to strike. The majority in SFL ruled that the legislation interfered unduly in a constitutionally guaranteed right of employees to a “meaningful” collective bargaining process. The court then took it further by introducing a constitutional “right to strike” to its interpretation of section 2(d) of the Charter. … Which brings us to April 2023. Later this month, the Supreme Court will rule on a legal clash between the Association des cadres de la Société des Casinos du Québec and the Société des Casinos du Québec. At issue generally is whether first-level casino managers can unionize—specifically, whether the section of Quebec’s Labour Code that excludes all management personnel from the legal definition of “employee” should be considered null and void with respect to first-level casino managers. In other words, the case involves a bedrock assumption of North American labour law—that employees and managers have different interests, and different levels of authority. “All provincial labour codes do exclude managers to some degree,” says Christopher Deehy, head of the labour law team at Lapointe, Rosenstein, Marchand, Melançon in Montreal. Most North American labour codes—Quebec’s included—were based roughly on the American Wagner Act of 1935, which guaranteed the right of private sector employees to organize into trade unions, engage in collective bargaining, and launch strikes. It was drafted during the heady early days of the labour movement when the distinction between labour and capital seemed absolute. But the low-level casino managers pushing for certification in Quebec don’t fall neatly into one cat- egory or the other, Deehy says—which explains why Ontario and Manitoba allow low-level managers to unionize through their associations. “Quebec casinos have thousands of employees and these low-level managers don’t have much authority,” he adds. “This isn’t a question that’s going to arise in many workplaces.” Still, the SCC will have to walk a fine line if it wants to continue on its path of broadening labour rights without triggering the obvious conflict of interest the Wagner Act was built in part to prevent. Much will depend on how the Quebec government reacts to the SCC’s ruling. … If the SCC decides the first-level casino managers have a right to unionize, it’ll likely leave the details to Quebec to work out, possibly by giving the province a year or more to redraft its labour code. “I don’t think the province would invoke the notwithstanding clause on something like this,” says [Alexis] Renaud. “It’s not as if unionizing certain classes of managers is unheard of in this country. But if the province were simply to move these low-level managers from the manager column to the em- ployee column while doing nothing else, that would be a problem.” That, says Renaud, would clear low-level casino managers to join existing staff unions, rather than create a new one. And that would put managers in the same bargaining units with staff members they supervise at some level, which would set up a clear conflict of interest. “If the government changes the code to allow them to unionize without specifying in law how they can unionize, that would be inappropriate,” says Renaud. “That is where you could get a shift in the labour dynamic. It would be complicated, to say the very least.” Deehy says he thinks the SCC will take a minimalist approach to the case. “Honestly, I can’t imagine the SCC just overturning 100 years of industrial policy. I don’t think we’ll see anything revolutionary,” he says. “But we could see a decision extending the right to organize to this class of manager.” (Continued on next page.) 102  Part I The Legal Framework Renaud isn’t willing to predict even that much. “I’m really not sure. The Supreme Court can surprise you,” he says. “I really don’t know which way they’ll jump.” In that sense, the top court has something in common with casinos. Whether you’re at the black- jack table or before the bench, it seldom pays to bet against the house. SOURCE: Beazley, 2023. Replacement Workers Under the CLC, employers have been permitted to temporarily replace bargaining-unit employees during a strike or lockout to continue operations. This is consistent with the labour laws in most of the provinces. In fact, only Quebec and BC currently restrict the use of temporary replacement workers. However, in 2023, the federal government introduced Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012, seeking to fundamentally change the rules regarding replacement workers. In 2022, the minority Liberal government, as part of its Supply and Confidence Agreement with the New Democratic Party (NDP), gave an undertaking to the NDP that it would introduce a legislative ban on temporary replacement workers. On November 9, 2023, the Liberal government introduced Bill C-58 to satisfy its under- taking to the NDP. Bill C-58 amends section 94 of the CLC by introducing several prohibi- tions on the use of temporary replacements workers during a strike or lockout. The specific prohibitions include the following: 1. No employer will be permitted to have bargaining-unit work performed by any employee, manager, or confidential employee who was hired after the day on which notice to bargain was given (s 94(4)(a)). This suggests that having bargaining-unit work performed by employees excluded from the bargaining unit (managers, con- fidential employees, etc.) will continue to be permitted so long as those excluded employees were hired before notice to bargain was given. 2. Contractors and employees of another employer will also be prohibited from per- forming bargaining-unit work during a strike or lockout (s 94(4)(b)). However, Bill C-58 includes two exceptions to this prohibition. First, if the employer was using the services of a contractor or another employer’s employee before notice to bargain was given, then those contractors/employees will be able to continue performing those services during the strike or lockout “so long as they do so in the same man- ner, to the same extent and in the same circumstances as they did before the notice was given” (s 94(5)). Second, the prohibition on the use of contractors excludes “dependent contractors” (s 94(4)(b)). The purpose of this exclusion is unclear, and clarification may be needed. 3. Bargaining-unit employees will not be allowed to work during any strike or lockout that involves “the cessation of work by all employees in the bargaining unit,” except if they are required to do so for purposes of maintenance activities or if it is ne- cessary because of a serious threat to the employer’s business or the life, health, or safety of any person (s 94(6)). This effectively means that bargaining-unit employees will be prohibited from making the decision to cross the picket line and return to their jobs during a full-blown strike or lockout.  Chapter 4 Canada Labour Code   103 Any employer who contravenes the prohibition on temporary replacement workers will be found guilty of an offence and could face a fine of up to $100,000 for each day during which the offence is committed or continued (s 100.1). Bill C-58 received royal assent on June 20, 2024, and will come into effect on June 20, 2025. Unfair Labour Practices Section 94 of the CLC establishes several practices that are considered unfair labour prac- tices in the relationship between the employer and the union. Many unfair labour practices apply to both parties, while some are specific to either the union or management. For ex- ample, it is considered an unfair labour practice for an employer to interfere in the forma- tion or administration of a trade union. But it is also an unfair labour practice for a union to interfere in the formation or administration of an employers’ organization. Neither party can attempt to intimidate, threaten, coerce, or impose a penalty on someone who files a complaint under the CLC. Employers are also prohibited from bargaining with a union that is not the certified bargaining agent. Similarly, a union that is not the certified bargaining agent is prohibited from attempting to bargain with the employer. Raiding is another unfair labour practice. It occurs when one union attempts to displace another. There are lawful ways for employees to switch to a new union, but this requires that a proper certification process occur, and until that happens the new union is prohibited from bargaining with the employer. Section 96 makes it clear that no person or organiza- tion (union or employer) is allowed to intimidate or coerce a person to try to force them to become or not become a member of a union. An example of an unfair labour practice that applies only to employers is discrimina- tion against employees who wish to join a union or are part of a union. This means that an employer may not refuse to hire, fire, suspend, transfer, lay off, or otherwise discriminate against an individual because that person wishes to become or is already a member of a union. Employers are also prohibited from requiring that job candidates sign contracts promising to give up the right to unionize. Employers should be particularly careful about their human resources management practices during organizing campaigns. Threatening, intimidating, or disciplining an employee involved in an organizing drive is considered an unfair labour practice. An important unfair labour practice that applies only to unions is attempting to union- ize workers on employer property during working hours without first getting permis- sion from the employer. Unions are also required to govern their affairs in a way that is non-­discriminatory and non-coercive. They may not expel or suspend a union member for discriminatory reasons, and, as noted above, they are prohibited from using threats or intimidation to force workers to become unionized. Where a party has been found to have engaged in an unfair labour practice, the CIRB may order a number of remedial actions, including the following: ordering that the offending party comply with the CLC; compensating, reinstating, or otherwise giving an employee anything that was denied as a result of the violation (e.g., awarding a transfer to another location, a salary increment, vacation, or any other benefit that the employee would have received if not for the unfair labour practice); or imposing fines. 104  Part I The Legal Framework Canada Labour Code: Part II—Occupational Health and Safety In this section, a brief overview of part II is provided. The purpose of part II of the CLC is to prevent accidents and injuries that arise out of, are linked with, or occur in the course of employment. The CLC specifies that to prevent injury, employers should first try to elim- inate the hazard. If that is not possible, the hazard should be reduced. Finally, if the hazard cannot be eliminated or reduced, the employer should provide personal protective equip- ment, clothing, devices, or materials. The CLC establishes the general rules and processes for the protection of workers, while specific requirements with respect to hazards that are common across many industries (e.g., noise, ladders, and excavations) are specified in the Canada Occupational Health and Safety Regulations. There are additional regulations spe- cific to industries that have unique working conditions: Aviation Occupational Health and Safety Regulations, Coal Mining Occupational Health and Safety Regulations, Maritime Occupational Health and Safety Regulations, Oil and Gas Occupational Safety and Health Regulations, and On Board Trains Occupational Health and Safety Regulations. As is the case with provincial health and safety legislation, the CLC allows an employee to withdraw from work and initiate a formal investigation if the employee reasonably believes the work is dangerous. Some risks are an inherent part of many jobs and can be particularly high in certain occupations, such as firefighting and policing. Where there are inherent dangers, employers are required to minimize the risk through all reasonable and practical measures. A work refusal would only be supported where the danger is not normally part of the job or where it is inherent but all reasonable and practical measures had not been taken to protect the worker. “Danger” is defined by the CLC as any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered. (s 122(1)) This definition is quite broad to ensure a flexible interpretation that would capture dan- ger that arises in a wide range of employment circumstances. It may also be complicated by the condition or health of the employee. In other words, a job task or activity may be hazardous for some employees but not for others. For example, the CLC contains special provisions for pregnant and nursing employees, who may refuse a task if they believe it poses a risk to their health or to the health of their fetus or child. In this case, the employee is required to consult with a qualified medical practitioner to establish whether a risk exists. An interesting question about danger arises with this individualized approach, particularly where there is workplace conflict or bullying. Do these circumstances constitute danger under the meaning of the CLC? This very situation was addressed in the Tryggvason case, described below.  Chapter 4 Canada Labour Code   105 No Danger Without Evidence That Workplace Conflict Causes Imminent Threat to Health CASE IN Nina Tryggvason v Transport Canada, 2012 OHSTC 10 POINT Facts Tryggvason was working as an employee of Transport Canada in Vancouver. According to Tryggvason, a number of changes had occurred in the workplace related to staffing and the distribution of work. In her opinion, the changes resulted in a form of workplace harassment and violence. She argued that her pre-existing medical conditions, combined with the conditions at work, placed her at risk and constituted danger within the meaning of the CLC. On June 9, 2010, Tryggvason invoked her right to refuse dangerous work, stating in an email: I am refusing to work under the Canada Labour Code Part 2—under the Health and Safety provisions and using the danger provisions to apply to emotional/physiological danger— including future danger to myself and others, and for the longer term negative impact on my health from the extreme workplace stressors. (at para 4) Tryggvason claimed to have depression, chronic stress as a result of bullying and retribution by supervisors, suicidal thoughts, urges to harm colleagues, and diabetes (the management of which she alleged was affected by stress and depression). Management called the Vancouver Police to seek guidance. Tryggvason was taken to the hospital, where a psychological evaluation was undertaken, and she was later released. The emergency room physician indicated that Tryggvason was not suicidal or homicidal and had good insight into her problems. The health and safety officer (HSO) assigned to investigate the case concluded that Tryggvason’s frustrations regarding her interpersonal relationships and work distribution did not amount to a con- dition of danger in the workplace. Tryggvason appealed the decision of the HSO. At the appeal hearing, Tryggvason’s counsellor (who had a PhD in social work but was not a physi- cian) indicated that Tryggvason met the tests for depression and post-traumatic stress disorder. Al- though the social worker was qualified to administer the tests, there was no supporting diagnosis from a physician. Relevant Issue Was the appellant exposed to danger, as defined by the CLC? Decision Appeals Officer Michael Wiwchar determined that in this particular case Tryggvason was not exposed to danger as defined by the CLC. In reaching this conclusion, Wiwchar first considered whether the risk of psychological harm (as opposed to physical harm) could be considered a danger within the meaning of the legislation. Referencing a prior decision in Tench v National Defence, Wiwchar agreed (at para 66) that it could be: [T]he alleged danger raised by the appellant in this case, that is, the alleged harassment, discrimination, bullying by co-workers, in her work place, are situations contemplated by the danger definition under subsection 122(1), when such acts have repercussions on the employee’s psychological health. The next step in the analysis was to determine whether the conditions detailed in the case could, per the definition of danger in the CLC, “reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it” (s 122(1)). In making this assessment, Wiwchar relied on a two-part test from Tench, which suggests that for a danger to exist, both of the following conditions must be met: 1. There must be persuasive evidence proving the employee’s mental illness was present at the time. 2. There must be evidence proving that the illness was aggravated or could have been aggravated by a condition while at work. After carefully examining the evidence brought forward at the appeal hearing, Wiwchar acknowl- edged the difficulty inherent in assessing the individual experience of danger but found that (Continued on next page.) 106  Part I The Legal Framework T­ ryggvason had not met the requirements of the two-part test set out in the 2007 case Alexander v Treasury Board: 33. When others can observe the alleged danger in the workplace, there is no great dif- ficulty in demonstrating that a danger may exist. However, if the danger is an individual experience, arbitrators have insisted that the employee must have solid evidence that can lead other reasonable individuals, examining the same circumstances, to conclude that the danger is indeed real. This is called an objective test. … 35. Furthermore, where an employee refuses to perform work on medical grounds, which is the case here, it is incumbent upon that employee to satisfy his or her employer with docu- mentary evidence from a physician that the work is a health hazard (see United Automobile Workers, Local 636 v. F.M.C. of Canada Ltd, Link-Belt Speeder Division (1971), 23 L.A.C. 234). In other words, the employee has the onus of producing the medical evidence that supports his or her claim that there is indeed a danger. As the Tryggvason case shows, the CLC has taken a rather indirect approach to harass- ment and bullying in federally regulated workplaces. This changed rather dramatically in October 2018 when Bill C-65, subsequently the Work Place Harassment and Violence Prevention Regulations (Government of Canada, 2021), specifically address harassment and violence. Section 122(1) of the CLC adds a new definition for harassment and violence and establishes the importance of preventing harm that arises from harassment and violence: Harassment and violence means any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment. The purpose of this Part is to prevent accidents, occurrences of harassment and violence and physical or psychological injuries and illnesses arising out of, linked with or occurring in the course of employment to which this Part applies. (s 122.1) In addition, the Work Place Harassment and Violence Prevention Regulations create new duties for employers, which include the following: the duty to investigate, record, and report all occurrences of harassment and violence; the duty to take specific measures to prevent and protect against harassment and violence, and to respond to occurrences and offer support to affected employees; and the duty to ensure employees (including managers and supervisors) receive training in harassment and violence prevention, as well as their rights and obligations under this section of the CLC. The CLC states that incidents of harassment and violence should not be investigated by a joint health and safety committee or safety representative. If someone is unhappy with the way a complaint is being handled, that person may complain to the federal minister of labour. The minister will investigate to see if the complaint has been dealt with appropri- ately or if the complaint is frivolous, trivial, or vexatious. If an employee is found guilty of harassment, the employer—not the employee—is held responsible for protecting workers. The Work Place Harassment and Violence Prevention Regulations establish the detailed requirements for compliance with the new parts of the CLC. The regulation includes requirements for the qualifications that an investigator must have, time frames for resolv- ing incidents, and requirements for dispute resolution processes and policies.1  Chapter 4 Canada Labour Code   107 It is interesting to consider whether the outcome in the Tryggvason case would have been different under the new harassment and violence provisions of the CLC. How adjudicators apply the new provisions, and the tests used to determine whether an employee has been harassed, remain to be seen. Health and Safety Responsibilities of Employers and Employees Both employers and employees have general duties and responsibilities that are speci- fied in sections 125 and 126 of the CLC. Employers are expected to protect the health and safety of every employee in every workplace controlled by the employer and for every work activity carried out by an employee in a workplace that is not controlled by the employer. This includes employees who work in third-party premises, employees who telework, and employees who have duties that are not conducted from a fixed location (e.g., mail carriers and truck drivers perform the majority of their duties away from the employer’s premises). However, even where employers do not have direct control over the worksite, they must still provide protective equipment and instruct employees in proper health and safety meas- ures. This provision protects employees engaged in the multitude of activities on third-party premises and means that, in an extreme situation, an employer may have to remove employ- ees from unsafe locations. There are 45 employer duties specified in the CLC, but they fall within the 12 main cat- egories listed below: 1. Form policy health and safety committees with both employer and employee repre- sentatives (see below for details). 2. Develop and post health and safety policies, procedures, and regulations. 3. Notify employees of any known or foreseeable hazards. 4. Develop procedures for managing hazardous substances and post safety data sheets. 5. Train all employees in safe procedures and provide appropriate supervision. 6. Investigate and report all accidents, occupational diseases, or other hazards known to the employer. 7. Maintain health and safety records. 8. Ensure that workplace buildings and structures meet prescribed standards, includ- ing any guard rails, barricades, or fences. 9. Ensure that equipment, machinery, and vehicles are maintained, meet standards, and are operated in a safe manner. 10. Ensure that levels of ventilation, lighting, temperature, humidity, sound, and vibra- tion meet prescribed standards. 11. Ensure that workstations and procedures meet ergonomic standards. 12. Provide first aid and health services, as well as sanitary and personal facilities with potable water. The main duties of employees are outlined in section 126 and include the following: 1. Use safety equipment, materials, devices, and clothing as prescribed. 2. Follow safety procedures. 3. Report safety hazards to the employer. 1 More details on the regulation can be found here:. 108  Part I The Legal Framework These requirements are intended to increase the involvement of employees in occupa- tional health and safety and to ensure the CLC is being followed. An employee who believes on reasonable grounds that there has been a contravention of the CLC, or that there is likely to be an accident or injury, is required to make a complaint to their supervisor. This pro- cess is mandatory. It is intended to ensure that employees’ health and safety concerns are addressed by the employer without the employee needing to initiate the refusal-to-work process described above. It should also be noted that employees cannot be found personally liable for anything done in good faith in providing first aid or in carrying out emergency measures. This is important for employees who volunteer to be fire or emergency wardens. Employers are required to ensure that these safety roles are filled (through volunteers or appointments) and that their specific duties are identified (see s 126(3)). Safety Committees The CLC requires that employers with more than 300 employees create a policy health and safety committee (PHSC). At least 50 percent of the PHSC must be made up of ­non-managerial employees. The PHSC is tasked with developing and monitoring health and safety policies and programs, including identification of hazards and employee education regarding health and safety matters. They are required to meet at least quarterly and have a key function in collecting and analyzing safety data for the organization. Federally regulated employers with 20 or more employees must have a workplace health and safety committee (WHSC). This is slightly different than a PHSC. The main duty of the WHSC is to conduct monthly inspections to identify hazards and to deal with complaints that arise. In other words, they enact the policies and programs developed by the PHSC. WHSCs are involved in investigations, inquiries, and inspections and are required to keep records of these events. If the workplace is small and no PHSC exists, the WHSC may also be involved in policy development and employee training. WHSCs are required to meet at least nine times each year at regular intervals. If an employer normally has fewer than 20 employees, the employer is required to appoint a health and safety representative. This person may not exercise managerial func- tions and generally participates in all the activities of policy and workplace committees. This means they may be involved in program development, training, hazard identification, and investigations. The health and safety representative is required to inspect the workplace on a monthly basis, maintain records, and report hazards. Complaint Resolution As noted above, employees who believe there is likely to be an accident or injury to health resulting from the work they do may make a complaint to their supervisor and refuse to engage in the work until the complaint has been resolved. An employee cannot refuse to work if the hazard is a normal condition of employment. If the employee and supervisor do not agree, the matter is referred to the internal WHSC (see above), which will investigate. The committee will report to the employer and generally make a recommendation regard- ing the appropriate resolution of the issue. If the employee or employer disagrees with the committee, the matter can be referred to the minister of labour, who will appoint an inves- tigator external to the organization. The employee can continue to refuse to work until the  Chapter 4 Canada Labour Code   109 minister’s investigation is complete. If a complaint is made by an employee, an employer is prohibited from taking any action against that employee. When conducting an investigation into a complaint or workplace accident, an investiga- tor appointed by the minister has, among other powers, the ability to enter the workplace, take samples and photographs, prevent anyone from disturbing the site of an accident, re- quire that the employer produce documents, and take statements from employees. If a dan- ger or hazard cannot be corrected or protected against, a stop-work order may be issued and will stay in effect until the problem can be addressed. Employers are prohibited from taking any action against employees who legally refuse dangerous work under this part of the CLC. They are also prohibited from penalizing employees who take part in the investigation of hazards or workplace accidents. Offences and Punishment The penalties for violating part II of the CLC can be severe if an individual is convicted of an offence. They include the potential of a fine up to $1 million or a prison term of up to two years (or both). This applies to officers, directors, agents, senior public officials, and any other person exercising managerial or supervisory functions in public administration. As is the case in most provincial legislation, the defence of “reasonable care and due diligence” is available to individuals who are charged under the CLC. Provided a manager has done everything a reasonable person would do to prevent an accident, the manager is less likely to be charged, and if charged, they are more able to defend against the charge in court. The following are general recommendations for managers at differing levels to ensure they are exercising reasonable care and due diligence: Senior management must: be aware of responsibilities and have written policies and directions in place ensure that system-wide programs are in place require regular reports and conduct periodic spot checks immediately act when made aware of potentially serious situations. Senior managers are entitled to rely on their health and safety regime unless made aware that the system is defective. Middle management should: be aware of responsibilities and issues ensure that the appropriate hazard prevention programs are in place where necessary, give specific direction report upward and manage downward exercise supervision and control over those they may normally be expected to influence or control. Middle managers have a responsibility to not only give instructions but to also see that those instructions are carried out. Line management should: ensure that hazard prevention program components are implemented; ensure that supervisors and employees are trained and that training is confirmed and recorded ensure that incidents are investigated and reported, corrective action is implemented, and follow-up is done. 110  Part I The Legal Framework Canada Labour Code: Part III—Standard Hours, Wages, Vacations, and Holidays Part III of the CLC contains employment standards that are similar to the provisions in the BC Employment Standards Act and the Alberta Employment Standards Code (see Chapter 6). In other words, it addresses minimum requirements in terms of hours of work, wages, vacations, leaves, termination of employment, and sexual harassment. Most of part III applies to any employer or employee within the federal jurisdiction as described at the start of this chapter. In the following paragraphs, the key requirements of the CLC will be explained, with special emphasis on some unique provisions that are not found in most provincial legislation. Employment Information and Employment Statement New provisions added to the CLC in July 2023 require employers to provide federally regulated employees with a “written employment statement” containing information relat- ing to their employment within the first 30 days of an employee’s employment, as well as an updated employment statement within 30 days after any change is made to the infor- mation contained in the last statement provided to the employee. This marks one of the notable deviations from the non-union workplace featured in the majority of this text. For ­non-union employees in BC and Alberta, there is no requirement for a written employment statement, agreement, or contract, though it is generally advisable to do so. The following information must be included in the employment statement provided under section 253.2 of the Act: (a) the names of the parties to the employment relationship; (b) the job title of the employee and a brief description of their duties and responsibilities; (c) the address of the ordinary place of work; (d) the date on which the employment commences; (e) the term of the employment; (f) the duration of the probationary period, if any; (g) a description of the necessary qualifications for the position; (h) a description of any required training for the position; (i) the hours of work for the employee, including information on the calculation of those hours and rules regarding overtime hours; (j) the rate of wages or salary and the rate of overtime pay; (k) the frequency of pay days and the frequency of payment of any other remuneration; (l) any mandatory deductions from wages; and (m) information about how the employee can claim reimbursement for reasonable work-related expenses. In addition, an employer must, within the first 30 days of an employee’s employment, provide the employee with a copy of any materials that the ministry of labour makes avail- able and that contains information respecting employers’ and employees’ rights and obliga- tions under the CLC and, within 30 days after updated materials are made available, provide  Chapter 4 Canada Labour Code   111 the employee with a copy of the updated materials. Such materials must also be posted in readily accessible places where they will likely be seen by employees. Hours of Work Standard hours of work for employees covered by the CLC are calculated as an average of 8 hours per day, not exceeding 40 hours per week. Employees can work more than 40 hours per week on average as long as the longer schedule is agreed to in writing by the union or by at least 70 percent of the affected employees in non-unionized workplaces. A vote to change standard hours for non-unionized workplaces can be requested by any affected employee and is conducted by an inspector from Employment and Social Development Canada. The request must come within 90 days of the new hours taking effect, and the vote is conducted by secret ballot in unionized workplaces. In any case, the maximum number of hours that employees can be required to work is normally 48. Sections 176 and 177 of the CLC allow employees to work in excess of the 48-hour maximum in exceptional circumstances. If the employer knows about the circumstances in advance, the employer is required to apply for a permit, ensure that the employees know about the application, and justify to the minister of labour the need for working in excess of the maximum. Employers do not need a permit if the situation is emergent and the em- ployer could not have known about it in advance. Section 177(1) states: The maximum hours of work in a week specified in or prescribed under section 171, established pursuant to section 172 or prescribed by regulations made under section 175 may be exceeded, but only to the extent necessary to prevent serious interference with the ordinary working of the indus- trial establishment affected, in cases of (a) accident to machinery, equipment, plant or persons; (b) urgent and essential work to be done to machinery, equipment or plant; or (c) other unforeseen or unpreventable circumstances. Furthermore, shifts must be scheduled so that employees have at least one full day of rest each week, and the CLC prescribes that, where possible, the day of rest should be a Sunday. Employees who work in excess of 40 hours per week are to be paid at least 1.5 times their regular rate of pay. Employees are entitled to an unpaid break of at least 30 minutes for every 5 hours of work and a rest break of at least 8 hours between shifts. Employers must also provide 96 hours’ written notice of the shift schedule, and employees can refuse shifts scheduled with less than 96 hours’ notice (unless it’s an emergency, a different shift schedule requirement is negoti- ated into a collective agreement, or the change was requested by the employee). Employees with at least six months of service have the right to request a change to their work sched- ule, work location, number of hours, or other conditions, and the employer is obligated to respond in writing, specifying the reasons for declining the request (if applicable) in accord- ance with the permissible grounds listed in the legislation. Employees also have the right to refuse to work overtime requested by an employer to fulfill a family responsibility set out in the section that provides for family responsibility leave. Minimum Wages Division II of part III addresses minimum wage rates and takes a unique approach by estab- lishing that the minimum rate should mirror that of the province in which the employee normally works. 112  Part I The Legal Framework Vacations All employees are entitled to vacation, which they may start taking after being employed for ten months. Employees are entitled to at least two weeks of vacation (or 4 percent vacation pay) after one year of employment; three weeks (or 6 percent vacation pay) after five years; and four weeks (or 8 percent vacation pay) after ten years of employment. If a business is sold, merged, or leased, the employment of the affected employees is considered continuous and their vacation entitlements travel with them to the new employer. General Holidays There are ten general holidays established by the CLC: 1. New Year’s Day 2. Good Friday 3. Victoria Day 4. Canada Day 5. Labour Day 6. National Day for Truth and Reconciliation 7. Thanksgiving Day 8. Remembrance Day 9. Christmas Day 10. Boxing Day Employees can work on a general holiday, but they must be paid at a rate of 1.5 times their regular rate of pay plus the holiday pay for that day. If the employee is a manager or other professional and is required to work on the general holiday, they will receive their normal rate of pay but must be given a day off with pay at another time. For employees who work part time, their holiday pay is calculated in proportion to the number of hours they normally work. Employees who do not work on the holiday are paid in accordance with the method they earn their wages (e.g., hourly, salary, or commission). The rate will normally equate to 1/20 of the wages they earned in the four weeks immediately prior to the holiday. Reimbursement of Work-Related Expenses Employees in the federal sector can get reimbursement for reasonable work-related expenses in accordance with the Canada Labour Standards Regulations. The Regulations do not provide a list of eligible expenses, but instead provide guidance regarding the factors to be considered in determining whether an expense is work related and reasonable. The factors to consider in determining whether an expense is work related are as follows: 1. whether the expense is connected to the employee’s performance of work, 2. whether the expense enables an employee to perform work, 3. whether incurring the expense is required by the employer as a condition of ­employment or continued employment, 4. whether the expense satisfies a requirement for the employee’s work imposed by an occupational health or safety standard, and 5. whether the expense is incurred for a legitimate business purpose and not for ­personal use or enjoyment.  Chapter 4 Canada Labour Code   113 The factors to consider in determining whether an expense is reasonable are as follows: 1. whether the expense is connected to the employee’s performance of work; 2. whether the expense is incurred to enable an employee to perform work; 3. whether the expense is incurred at the request of the employer; 4. whether any amount of expense is incurred beyond the amount necessary to enable the performance of the work; 5. whether the expense is one that is normally reimbursed by employers in similar industries; 6. whether the employer authorized the expense in advance; 7. whether the expense is incurred by the employee in good faith; and 8. whether the claim includes documentation, such as a receipt or invoice, that indi- cates that the expense was incurred. Maternity Leave, Parental Leave, Compassionate Care Leave, and Other Leaves of Absence Employees that fall under the CLC are entitled to several different types of absence leaves. Where possible, the employee is required to give notice to the employer regarding the date of the leave as well as the expected return date. In cases where the leave is due to pregnancy or another circumstance that affects the health of the employee or a family member, the em- ployee is required to provide a certificate from a qualified physician or specialist. While an employee is on leave, the employee continues to accrue pension and other benefits, though the employee is responsible for paying the premiums. The employee does not receive a wage but would normally receive some support through employment insurance. Employers are not allowed to discipline an employee because they have applied for or received a leave of absence, and the employee’s position (or a comparable one) must be available to them when they return from the leave. The following leaves of absence are guaranteed under the CLC: 1. Maternity and parental leave. Families and pregnant employees who fall under the CLC are entitled to a number of different supportive employment practices. First, a pregnant employee may be reassigned or have their job modified if there is medical evidence that any of their original job functions could put the employee or their fetus at risk. If there is a medical reason the employee should not work at all during the pregnancy, the employee will be granted a leave of absence from the beginning of the pregnancy until 24 weeks after the birth. For a normal pregnancy, any em- ployee who is pregnant is entitled to a leave of absence of up to 17 weeks, which can begin any time within the last 13 weeks of their estimated delivery date. If the newborn is hospitalized, the leave may be extended for the length of the child’s hospitalization. In addition to maternity leave, new parents of their own or an adopted child are entitled to a leave of absence of up to 63 weeks starting the day the child is born or comes into the care of the employee. Parental leave can be split between the parents if both work in the federal jurisdiction. However, the aggregate leave cannot exceed 71 weeks for the same birth or adoption. Should special medical circumstances exist where the child or parent is ill, the leave can be extended to 104 weeks. The combined aggregate amount of maternity and parental leave that may be taken by more than 1 employee in respect of the same birth cannot exceed 86 weeks, 114  Part I The Legal Framework but the combined aggregate amount of maternity and parental leave that may be taken by 1 employee in respect of the same birth cannot exceed 78 weeks. 2. Compassionate care leave. Employees who fall under the federal jurisdiction are entitled to take compassionate leave of up to 28 weeks to provide care or support to a family member of the employee if a quali- fied medical practitioner issues a certificate stating that the family member has a serious medical condition with a significant risk of death within 26 weeks. (s 206.3(2)) A family member can be: a spouse or common law partner of the employee, a child of the employee or a child of the employee’s spouse or common law partner, a parent of the employee or a spouse or common law partner of the parent, or any other person who is classified as a “family member” in the Employment Insurance Act. 3. Critical illness leave. Employees who fall under the CLC are allowed 37 weeks of leave to care for a child that is critically ill. They are required to provide a medical certificate from a specialist indicating that the child requires the parent’s care or support and the length of time the child will need that care and support. 4. Death or disappearance leave. This is a particularly unique section of the CLC that provides compassionate leave to parents of a child who has died or has disappeared and it is probable, considering the circumstances, that the death or disappearance is the result of a crime. The maximum leave for death is 104 weeks, and the maximum leave for disappearance is 52 weeks. In the case of a disappearance, the leave ends two weeks after the child is found alive. If the child is not found alive, the leave is extended for another 52 weeks. The leave also ends when it becomes clear that the death or disappearance was not the result of a crime. An employee is not entitled to this leave if the employee is charged with the crime or it is likely that the child was a party to the crime. 5. Bereavement leave. Employees who fall under the CLC are entitled to up to five days’ bereavement leave that may be taken during the period that begins on the day on which the death occurs and ends six weeks after the latest of the days on which any funeral, burial, or memorial service of the immediate family member occurs. This is the only leave where qualified employees are entitled to receive their regular rate of pay for a portion of the leave. Any employee who has worked for three or more months and loses a member of their immediate family is entitled to the first three days of bereavement leave with pay at their regular rate of wages for their nor- mal hours of work. The definition of immediate family is not provided in the CLC. However, for the purposes of bereavement leave under the CLC, the Canada Labour Standards Regulations defines immediate family as follows: (a) the employee’s spouse or common law partner (b) the employee’s father and mother and the spouse or common law partner of the father or mother (c) the employee’s children and the children of the employee’s spouse or common law partner (d) the employee’s grandchildren  Chapter 4 Canada Labour Code   115 (e) the employee’s brothers and sisters (f) the grandfather and grandmother of the employee (g) the father and mother of the spouse or common law partner of the employee and the spouse or common law partner of the father or mother (h) any relative of the employee who resides permanently with the employee or with whom the employee permanently resides. The Canada Labour Standards Regulations also clarify that “common law part- ner” means a person who has been cohabiting with an individual in a conjugal rela- tionship for at least one year, or who had been cohabiting with the individual for at least one year immediately before the individual’s death. 6. Medical leave. Changes to the CLC in December 2022 entitled employees who fall under the CLC to ten days of paid medical leave. The actual number of days to which an employee will be entitled will depend on the employee’s length of service as follows: After 30 days of continuous employment with the employer, the employee will earn 3 days of paid medical leave. Employees will earn one additional paid day at the start of each month after completing one month of continuous employment, up to a maximum of ten days per calendar year. Each paid day must be paid at the employee’s “regular rate of wages” as defined by the Canada Labour Standard Regulations. An employer may require an employee to take paid medical leave in full-day increments. Any days of medical leave with pay that an employee does not take in a calendar year will carry forward to the next calendar year (January 1), but each day carried over reduces the number of days that can be earned in that next year by one. An employer may require, through a written request made within 15 days after the employee’s return to work, that the employee provide a medical certificate with respect to any period of paid or unpaid medical leave of at least five consecutive days. The proposed regulations will require all employers to keep the following records related to each period of medical leave with pay: dates of commencement and termination of leave, the year of employment when leave was earned, the number of days of leave carried over from a previous year, a copy of any written request for a medical certificate made by an employer, and a copy of any medical certificate submitted by an employee. In addition to paid medical leave, employees that fall under the CLC are entitled to an unpaid medical leave of absence of up to 27 weeks as a result of personal illness or injury, organ or tissue donation, or medical appointments during work- ing hours. If a medical leave of absence is three days or longer, the employer may require that the employee provide a certificate issued by a health care practitioner certifying that t