Sources of Employment Law PDF

1 Sources of Employment Law Statute law—authored by Parliament and legislatures Constitutional Law—the Canadian Charter of Rights and Freedoms Common law—based on written decisions of judges Copyright © 2021 Emond Montgomery Publications. All rights reserved. ...

1 Sources of Employment Law Statute law—authored by Parliament and legislatures Constitutional Law—the Canadian Charter of Rights and Freedoms Common law—based on written decisions of judges Copyright © 2021 Emond Montgomery Publications. All rights reserved.  2 Statute Law: How it is Made Public Bills First reading: introduction by Cabinet minister Second reading: debate of the bill in principle leading to a legislative vote If it passes, a legislative committee discusses it clause by clause Third reading: final vote by legislature Royal assent: upon signature by the lieutenant governor, the bill becomes a statute Copyright © 2021 Emond Montgomery Publications. All rights reserved.  3 Statute Law: How it is Made (cont’d) Private Bills Non-public matters are covered, such as changes to corporate charters Private Members’ Bills, a.k.a. Members’ Bills Public matters are covered A private member of the legislature (MLA) introduces the bill A private member is not a cabinet minister: a “backbencher” in the ruling party, or a member of an opposition party Its chances of being passed are low Copyright © 2021 Emond Montgomery Publications. All rights reserved.  4 Statute Law: Acts and Regulations Statutes (also referred to as Acts) contain the main requirements of the law Regulations contain the detailed requirements and can be changed without amending the statute Together, statutes and regulations are called “legislation” Copyright © 2021 Emond Montgomery Publications. All rights reserved.  5 Statute Law: Jurisdiction and Interpretation Judges and members of administrative tribunals interpret legislation while adjudicating cases Jurisdiction: The authority to interpret legislation is established by the statute; establishes: Who can adjudicate The issues that can be adjudicated The geographic region to which the statute applies Several statutes may apply to a single situation Copyright © 2021 Emond Montgomery Publications. All rights reserved.  6 Statute Law: Rules for Interpretation of Statutes Mischief Rule What problem was the statute originally intended to address? Internal Aids What does the preamble to the statute say? Definitions within statute of terms External Aids What do scholarly articles and dictionaries suggest? Copyright © 2021 Emond Montgomery Publications. All rights reserved.  7 Authority to Pass Legislation According to the terms of the British North America Act (now called Constitution Act, 1867), Canada is a federal state with two levels of government Provincial government: covers about 90 percent of employees Federal government: covers 10 percent of employees working in industries of “national importance” such as banking, shipping, and broadcasting Under delegated authority granted by provincial legislation, municipalities can also pass laws (“bylaws”) that affect employers and employees Copyright © 2021 Emond Montgomery Publications. All rights reserved.  8 Key Employment Statutes Alberta (AB) British Columbia (BC) Employment Standards Code Employment Standards Act Human Rights Act Human Rights Code Labour Relations Code Labour Relations Code Occupational Health and Occupational Health & Safety Safety Act & Regulation Regulation Workers’ Compensation Act Workers’ Compensation Act Personal Information Personal Information Protection Act Protection Act Copyright © 2021 Emond Montgomery Publications. All rights reserved.  9 Key Federal Employment Statutes Canada Labour Code Canadian Human Rights Act Employment Equity Act Personal Information Protection and Electronic Documents Act (PIPEDA) Canada Pension Plan Employment Insurance Act Copyright © 2021 Emond Montgomery Publications. All rights reserved.  10 Canadian Charter of Rights and Freedoms Passed in 1982, the Charter sets out a broad range of rights, including equality rights It only applies where there is an element of government activity It is “supreme law”—meaning that it can override any legislation or government action that is inconsistent with its principles Copyright © 2021 Emond Montgomery Publications. All rights reserved.  11 Canadian Charter of Rights and Freedoms (cont’d) A key provision is section 15(1): Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability Copyright © 2021 Emond Montgomery Publications. All rights reserved.  12 Vriend v Alberta Vriend was a teacher at a Christian college in Alberta who had consistently received positive performance evaluations. When the college found out he was gay, he was terminated. The Human Rights Commission did not accept his claim because sexual orientation was not a protected ground in Alberta’s human rights legislation. Issue: Was the omission of sexual orientation as a prohibited ground of discrimination in Alberta a violation of section 15 of the Charter and therefore unconstitutional? Copyright © 2021 Emond Montgomery Publications. All rights reserved.  13 The Charter’s Effect on Employment Law An employment law may be challenged on the basis that it violates a right or freedom guaranteed by the Charter (e.g., M v H—see page 14) Infringement of individual rights may be allowed (s 1) where the infringement is a “reasonable limit in a free and democratic society” (e.g., R v Oakes—see page 15) Notwithstanding clause (s 33) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  14 The Common Law Judge-made law is a separate source of law from statute law and is “residual” in nature Common law decisions are based on precedent Principles of the common law include: Stare decisis Binding Persuasive Distinguishable Watershed decisions Copyright © 2021 Emond Montgomery Publications. All rights reserved.  15 Common Law and Employment Two main branches of the common law affect employment: 1. Contract Law: to be valid, an agreement requires an offer, acceptance, and consideration Damages may be awarded to put plaintiffs in the same position they would be in if the contract had not been breached 2. Tort Law: provides a remedy for a civil wrong other than a breach of contract, such as defamation, negligence, or assault Damages may be awarded for losses suffered as a result of the defendant’s conduct Copyright © 2021 Emond Montgomery Publications. All rights reserved.  16 Hierarchical Court System Supreme Court of Canada Court of Appeal Superior Courts Special Jurisdiction Courts Administrative Tribunals Most employment statutes are administered by specialized commissions and boards Specialized tribunals interpret and enforce the statutes Copyright © 2021 Emond Montgomery Publications. All rights reserved.  17 Locating Employment Laws http://laws.justice.gc.ca Federal Department of Justice website canlii.org Canadian Legal Information Institute www.qp.alberta.ca/laws_online.cfm www.bclaws.ca Digests, textbooks, loose leaf reporting services, newsletters Copyright © 2021 Emond Montgomery Publications. All rights reserved.  18 Twin Pillars of Individual Employment Law 1. Common Law 2. Employment-related legislation (statutes and regulations): “floor” rights and mechanisms for enforcement Legislation will either be provincial or federal Copyright © 2021 Emond Montgomery Publications. All rights reserved.  19 Areas of Common Law Liability 1. Misrepresentation by candidates 2. Wrongful hiring: negligent misrepresentation 3. Inducement: aggressive recruiting (enticing from secure employment) 4. Restrictive covenants (including non- competition, confidentiality and non-solicitation) 5. Anticipatory breach of contract 6. Background checking: negligent hiring 7. Inducing breach of contract Copyright © 2021 Emond Montgomery Publications. All rights reserved.  20 Misrepresentation by Job Candidates May be just cause for dismissal if it: seriously prejudices the employer, or indicates material untrustworthiness Minor misstatements, even deliberate ones that do not induce the employer to hire the applicant, do not justify dismissal Copyright © 2021 Emond Montgomery Publications. All rights reserved.  21 Misrepresentation: Wrongful Hiring Negligent misrepresentation: Queen v Cognos Inc Where parties have a special relationship (i.e. one party has superior expertise and knowledge that it can foresee the other party relying upon). The knowledgeable party innocently makes a statement of fact that is inaccurate. The knowledgeable party did not take reasonable care to verify its accuracy. The other party reasonably relied upon the information to make a decision. The other party is damaged by the misrepresentation (“relies to their detriment”). Copyright © 2021 Emond Montgomery Publications. All rights reserved.  22 Misrepresentation: Wrongful Hiring (cont’d) Fraudulent misrepresentation: Where one side makes a statement of fact that it knows to be untrue, and the other party relies on it to their detriment Copyright © 2021 Emond Montgomery Publications. All rights reserved.  23 Use of Executive/recruitment Firm Misrepresentations Employer is still liable for any: breaches, misrepresentation, or inducements. Search firm is “acting on behalf of” the employer How to reduce exposure: Careful selection of firm Set boundaries and guidelines including an expectation firm will abide by all laws Get search firm to provide indemnity Copyright © 2021 Emond Montgomery Publications. All rights reserved.  24 Inducement (Allurement, Enticement) Inducement: Aggressive recruiting techniques or inflated promises that lure employee to new job Result: Longer notice of termination period Additional damages may be awarded for the tort of allurement—compensate employee for lost earnings, costs of moving, or buying a new home. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  25 Restrictive Covenants The former employee is barred from certain actions where there exists a valid Restrictive Covenant An “express” term of employment An Agreement prevents employees and former employees from: Exploiting the employer’s client relationships, trade secrets, confidential info, and goodwill Competing with the employer Applies during employment and after the employment relationship has ended (called a “post-employment obligation”) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  26 Restrictive Covenants (cont’d) Some examples: 1. Confidentiality 2. Non-compete 3. Non-solicit (both of clients and employees) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  27 Restrictive Covenants: Three-Way Balance Public interest: Free competition and labour mobility Employee interest: Employer interest: To use their knowledge, skill, and expertise to To protect its business secure employment Copyright © 2021 Emond Montgomery Publications. All rights reserved.  28 Restrictive Covenants (cont’d) Any restrictive covenant is void as being a restraint of trade unless all of the following conditions are met: 1. Protects a legitimate proprietary interest of the employer that is worthy of protection Firm-specific, not just general expertise and skills 2. Reasonable in terms of duration and geographic location Only where competition exists for the employer’s product Only so long as it takes for the employer to recover 3. Must not be contrary to the public interest Should not be overly broad or restrictive Copyright © 2021 Emond Montgomery Publications. All rights reserved.  29 Restrictive Covenants (cont’d) Onus (i.e. burden of proof) is on the employer to prove reasonableness and validity Any doubts are resolved in favour of the employee Reflecting appreciation for the disequilibrium in bargaining power Note: An otherwise valid restrictive covenant ceases to bind an employee if they are found to have been wrongfully dismissed Copyright © 2021 Emond Montgomery Publications. All rights reserved.  30 Anticipatory Breach of Contract Either employer or employee may be liable if it breaks (repudiates) the employment contract before employment begins If plans change and there is no longer a position: 1. Where there has been an offer and acceptance (written or verbal) 2. Where there is no cause for withdrawing the offer 3. Where the breach is not the result of “Frustration” Copyright © 2021 Emond Montgomery Publications. All rights reserved.  31 Background Checks (Negligent Hiring) Background checks should be completed at least to the extent necessary to avoid a claim that the employer could have reasonably prevented a foreseeable harm to a third party Employment references Educational and professional credentials Credit Police records Internet and social media Copyright © 2021 Emond Montgomery Publications. All rights reserved.  32 Defining the Relationship: Tests for Determining Status Copyright © 2021 Emond Montgomery Publications. All rights reserved.  33 Employee vs Independent Contractor Growing trend towards independent contractors Common issue in employment setting, particularly non-union Much protective employment legislation (Employment Standards, Min. Wage, etc.) applies only to employment relationships Human Rights and Occupational Health and Safety Acts apply to both Copyright © 2021 Emond Montgomery Publications. All rights reserved.  34 Independent Contractor (IC) Independent contractors are self-employed / independently employed workers engaged to perform specific work Increasingly popular alternative to hiring an employee They are NOT employees of the business Legal distinction is important and often difficult to make Copyright © 2021 Emond Montgomery Publications. All rights reserved.  35 Independent Contractor (cont’d) Advantages for employer included in contract: No statutory remittances IC not entitled to employment standards protections No common-law wrongful dismissal claims Advantages for IC included: Tax breaks More flexibility to work for others Copyright © 2021 Emond Montgomery Publications. All rights reserved.  36 Methods/Tests for Determining Status 1. Control test Who supervises/controls the “when” and “where” of work? An important consideration 2. Risk test Does the worker have a financial investment in the business, so that there is an opportunity for profit or risk of loss? Copyright © 2021 Emond Montgomery Publications. All rights reserved.  37 Methods/Tests for Determining Status (cont’d) 3. Organization test Are the services provided integral or ancillary to the business? 4. Ownership test Who owns the tools? This factor is instructive but not conclusive Copyright © 2021 Emond Montgomery Publications. All rights reserved.  38 Some Steps to Minimize Risk of IC Being Deemed an Employee Clearly written contract IC can work offsite identifying IC status Allow right to accept or refuse No statutory deductions work or ESC standards such Have IC purchase own as vacation pay, etc. insurance Indemnity clause No formal performance Allow IC to work for reviews as with employees others IC should incorporate Avoid setting hours Minimize integration into organization Copyright © 2021 Emond Montgomery Publications. All rights reserved.  39 Use of Temporary Employment Agencies “Leasing” individuals/personnel is a growing trend, cutting across the spectrum of corporate positions Expect this trend to accelerate in both the public and private sectors as organizations adapt to new business models made possible by: advances in technology and the trend to outsourcing non-core functions Copyright © 2021 Emond Montgomery Publications. All rights reserved.  40 Liability of Client Organization What counts to the courts: The ultimate source of remuneration (who carries the ultimate economic burden to ensure that there are funds to honour the cheque), not just who signs the cheque (e.g. a temp agency) Other relevant factors include: Who exercises daily control? Who has the real responsibility for hiring, disciplining, and dismissing employees? Copyright © 2021 Emond Montgomery Publications. All rights reserved.  41 Types of Employees Generally speaking, there is no formal legal distinction between employees based on hours of work. However, organizations often refer to the following categories of employees: Full-time Part-time Temporary (“contract position”) Casual Agency (“acting on behalf of another”) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  42 Chapter Overview 1. History and Premises of Labour Law 2. Establishing a Union 3. Collective Agreements 4. Strikes and Lockouts 5. Unions and the Charter of Rights & Freedoms Copyright © 2021 Emond Montgomery Publications. All rights reserved.  43 Introduction Individual employment Contract between employer and employee individually No association, or regulatory agency Imbalance of power between employers, employees Labour movement rebalanced relationship Workers could organize into unions who negotiate on their behalf Negotiating positions became more balance Copyright © 2021 Emond Montgomery Publications. All rights reserved.  44 1. History and Premises Main features of modern labour law (since 1940s): Ability of individual employees to form a union Ability of union to force employer to bargain with it only Ability of union to use economic sanctions Informed early employment legislation Copyright © 2021 Emond Montgomery Publications. All rights reserved.  45 1. History and Premises (cont’d) 1925: Provincial authority to regulate labour and employment Wagner Act model: 1943 onward Foundation of modern labour law Copyright © 2021 Emond Montgomery Publications. All rights reserved.  46 1. History and Premises (cont’d) Components of Wagner Model Right of employees to form Duty to bargain in good faith or join union Prohibition of unfair labour Process for certification of practices unions Administrative body Collective agreement as established: Labour enforceable contract Relations Boards Rules for strike (or lockout) activity Copyright © 2021 Emond Montgomery Publications. All rights reserved.  47 2. Establishing a Union Three phases: Organizing of employees Certification Collective bargaining (first agreement) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  48 2. Establishing a Union (cont’d) Certification process Union organizers prove a minimum level of support Union applies to LRB for certification LRB determines whether unit is “appropriate for bargaining” LRB confirms number of employees in unit LRB orders secret ballot representation vote – results will determine certification Copyright © 2021 Emond Montgomery Publications. All rights reserved.  49 2. Establishing a Union (cont’d) Decertification Union loses bargaining rights Process almost identical to certification Copyright © 2021 Emond Montgomery Publications. All rights reserved.  50 2. Establishing a Union (cont’d) Collective bargaining process Union or employer serves notice of intent to bargain Parties must start bargaining once notice served Duty to “bargain in good faith” If bargaining breaks down: Either party can request LRB appoint mediator Either party can begin job action Both parties can agree to voluntary arbitration Copyright © 2021 Emond Montgomery Publications. All rights reserved.  51 2. Establishing a Union (cont’d) Many disputes are about unfair labour practices Motive Employer’s actions must not be for purposes of harming the union or violating terms of a negotiated agreement Onus Generally falls on whoever filed complaint Copyright © 2021 Emond Montgomery Publications. All rights reserved.  52 2. Establishing a Union (cont’d) Collective agreements include dispute mechanisms for when parties disagree Collective agreement bars (BC), or certification bars (AB) restrict when a union can be raided Peace obligation: no strike or lockout allowed during term of collective agreement Copyright © 2021 Emond Montgomery Publications. All rights reserved.  53 3. Collective Agreement Written agreement between employer and union containing terms and conditions of work Represents all bargaining unit employees governs how employers manage their operations Provides framework for dispute resolution Imposes peace during its time Parties do not look elsewhere for workplace rules Copyright © 2021 Emond Montgomery Publications. All rights reserved.  54 3. Collective Agreement (cont’d) Once union/employer get tentative agreement, ratification begins Employees vote to accept or reject If rejected, parties go back to bargaining table If accepted, is signed, submitted or LRB and becomes binding contract Copyright © 2021 Emond Montgomery Publications. All rights reserved.  55 3. Collective Agreement (cont’d) Grievance/Arbitration Process Spelled out in collective agreement Multiple steps of grievance process before arbitration (last resort) Both parties share in costs Strike: Distinct right of unionized workers, must be voted on Lock out workers: Distinct right of the employer Copyright © 2021 Emond Montgomery Publications. All rights reserved.  56 4. Strikes and Lockouts Strike vote procedures Closely regulated, similar to elections, Secret ballot Majority of votes must support strike Timing of strike action described For employers, no vote required to lock out unless employer is part of an employer’s association (then there are similar rules) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  57 4. Strikes and Lockouts (cont’d) Allowed by strikers Not allowed by strikers Withdrawal of services Enter private land Communication of Adversely message to public (e.g., affect/inconvenience leafleting) public or a property owner Peaceful picketing on Assault people with signs public land (BC) Contact customers Strike only at worksite (AB) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  58 4. Strikes and Lockouts (cont’d) Essential services services that if interrupted would endanger life, safety, health of public; or are necessary to maintain rule of law, public security cannot strike or be locked out LRB and Minister of Labour can designate Copyright © 2021 Emond Montgomery Publications. All rights reserved.  59 4. Strikes and Lockouts (cont’d) Requires an essential services agreement can be negotiated some do not have ability to strike but do have right to binding arbitration AB: flat prohibition of strike/lockout for certain workers (e.g., fire fighters, public service) BC: no flat prohibitions—process led by LRB Copyright © 2021 Emond Montgomery Publications. All rights reserved.  60 5. Unions and Charter of Rights and Freedoms Before Charter: worker rights conferred by legislation, not guaranteed Due to use of freedom of association by courts, Charter now providing protection for unions Most relevant Charter rights for unions are Freedom of expression (s 2(b)) Freedom of association (s 2(d)) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  61 5. Unions and Charter of Rights and Freedoms (cont’d) Cases, freedom of expression Dolphin Delivery (SCC, RWDSU v Pepsi-Cola 1986) (SCC, 2001) Primary, secondary picketing; Emphasis on importance of certain activities not unions and strike activity protected, importance of Alberta v UFCW (SCC, unions 2013) UFCW v KMart (SCC, PIPA unconstitutional: 1999) importance of unions to lives Leafleting, benign character of workers Copyright © 2021 Emond Montgomery Publications. All rights reserved.  62 5. Unions and Charter of Rights and Freedoms (cont’d) Freedom of association 1. 1980s–90s: The “labour trilogy” Narrow interpretation of association, confers no real rights on unions as collectives 2. 2000s: Growing protection of right to form unions and bargain collectively (even against statutes) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  63 5. Unions and Charter of Rights and Freedoms (cont’d) Freedom of association “Labour Trilogy” Reference re Public Service Employee Relations Act (Alta) (Alberta Reference), PSAC v Canada, and RWDSU v Saskatchewan Association only protects individual employees’ right to join union No practical constitutional protections of union once formed Lavigne (SCC, 1991) freedom “not to associate” Copyright © 2021 Emond Montgomery Publications. All rights reserved.  64 5. Unions and Charter of Rights and Freedoms (cont’d) Freedom of association Dunmore (SCC, 2001) Turning point in interpretation of association Rebuttal of “Trilogy” logic (without overturning the decisions from 1987) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  65 5. Unions and Charter of Rights and Freedoms (cont’d) Taken together, Mounted Police Association and Sask. Fed. of Labour, along with Alberta (IPC) decision from 2013, suggest strong Charter support for unions Future cases will test strength of new trend Copyright © 2021 Emond Montgomery Publications. All rights reserved.  66 Introduction Canada Labour Code (CLC) covers employers and employees operating in the federal jurisdiction Trans-provincial operations Banking Telecommunications Transportation Crown corporations First Nation Organizations operating in Alberta or BC may be governed by CLC provisions rather than provincial employment legislation Copyright © 2020 Emond Montgomery Publications. All rights reserved.  67 Three Parts of the CLC 1. Part I: Industrial Relations 2. Part II: Occupational Health and Safety 3. Part III: Standard Hours, Wages, Vacations & Holidays Administrative bodies handle complaints Administrative tribunals/adjudicators are established to hear cases under each separate part of the CLC Copyright © 2020 Emond Montgomery Publications. All rights reserved.  68 Part I: Industrial Relations Affects employers and employees in unionized workplaces, or where employees are attempting unionize Canada Industrial Relations Board Adjudicate Part I disputes Powers and duties are similar to provincial labour relations boards and include: Conducting hearings about alleged violations of the CLC Conduct representation votes Determine bargaining unit size and composition Order remedies where there have been unfair labour practice complaints Orders of the board are enforced by the courts Copyright © 2020 Emond Montgomery Publications. All rights reserved.  69 Part I: Acquisition and Termination of Bargaining Rights Certification establishes the union as the exclusive bargaining agent for the group of employees in a bargaining unit Certification or decertification Secret ballot vote by more than 35% of the affected employees More than 50% must vote in favour What if an employer sells the business? Copyright © 2020 Emond Montgomery Publications. All rights reserved.  70 Part I: Collective Bargaining & Collective Agreements Collective agreements are group employment contracts Contents are negotiated between employer and union CLC requirements: Notice to bargain Good faith bargaining Technological change Grievance processes Dues check-off First agreements and conciliation Copyright © 2020 Emond Montgomery Publications. All rights reserved.  71 Part I: Strikes and Lockouts Strike—work stoppage initiated by the employees (secret ballot vote required) Lockout—work stoppage initiated by the employer Copyright © 2020 Emond Montgomery Publications. All rights reserved.  72 Part I: Strikes and Lockouts Strike/Lockout Rules: No strike/lockout until if a collective agreement is in force (not expired) Mandatory conciliation first 72-hours notice Operations must continue to the extent necessary to prevent danger to the public No replacement workers No discipline of striking/locked out workers Benefits/pensions must continue Workers get reinstated when the work stoppage is over Copyright © 2020 Emond Montgomery Publications. All rights reserved.  73 Part I: Unfair Labour Practices Interference in the formation of a union Intimidation, threats, or coercion Raiding Discrimination against employees who wish to join a union or are part of a union Organizing on employer property without permission Copyright © 2020 Emond Montgomery Publications. All rights reserved.  74 Part II: Occupational Health and Safety Part II purpose is to prevent accidents and injuries that arise out of, are linked with, or occur in the course of employment CLC Part II is supported by additional regulations: Aviation Occupational Health and Safety Regulations Coal Mining Occupational Health and Safety Regulations Maritime Occupational Health and Safety Regulations Oil and Gas Occupational Health and Safety Regulations On Board Trains Occupational Health and Safety Regulations Copyright © 2020 Emond Montgomery Publications. All rights reserved.  75 Part II: Danger CLC defines danger as “any hazard, condition or activity the 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.” Copyright © 2020 Emond Montgomery Publications. All rights reserved.  76 Part II: Key Responsibilities Employer Develop policies, procedures, and regulations Notify employees of known or foreseeable hazards Train employees in safe procedures Investigate and report incidents Maintain records Ensure buildings/equipment/conditions meet prescribed standards Employee Use safety equipment Follow safety procedures Report hazards Copyright © 2020 Emond Montgomery Publications. All rights reserved.  77 Part II: Right to Refuse Unsafe Work Employee may refuse work if there is likely to be an accident or injury resulting from the work—no retaliation by employer Report to the supervisor Refer to an internal workplace health and safety committee Refer to the minister, who will appoint an investigator If there is an accident that results in serious injury: Investigation occurs There may be charges under the code Due diligence defence Copyright © 2020 Emond Montgomery Publications. All rights reserved.  78 Part III: Standard Hours, Wages, Vacations & Holidays Similar to provisions in Alberta and BC Employment standards legislation Minimum requirements Some unique provisions 1. Minimum wage rates set by provincial legislation apply to workplaces under CLC jurisdiction 2. No federal WCB—employers are required to subscribe to an insurance plan (many subscribe to provincial WCB) 3. Unjust dismissal provisions Copyright © 2020 Emond Montgomery Publications. All rights reserved.  79 Part III: Hours of Work Average 8 hours per day, not exceeding 40 hrs per week Over 40 = 1.5x regular rate of pay Workers can vote to increase standard hours up to a maximum of 48 per week Exceptions to 48 hour maximum: 1. Accident 2. Urgent or essential work 3. Unforeseen or unpreventable circumstances Schedules must be posted 30 days in advance Copyright © 2020 Emond Montgomery Publications. All rights reserved.  80 Part III: Vacation and Holidays Minimum two weeks of vacation Nine general holidays: 1. New Year’s Day 2. Good Friday 3. Victoria Day 4. Canada Day 5. Labour Day 6. Thanksgiving Day 7. Remembrance Day 8. Christmas Day 9. Boxing Day Copyright © 2020 Emond Montgomery Publications. All rights reserved.  81 Part III: Leaves of Absence Leaves are normally unpaid (covered by Employment Insurance) Employee may continue to receive benefits (but may need to pay the premium) Types of leave in the CLC: Maternity and Parental Leave Compassionate Care Leave (Spouse, common law partner, child, parent) Critical Illness Leave Death or Disappearance Leave Bereavement Leave Sick Leave Reserve Force Leave Guaranteed reinstatement on return Copyright © 2020 Emond Montgomery Publications. All rights reserved.  82 Part III: Terminations Group termination (50 or more employees) provisions Notice requirements Joint planning committee Individual termination provisions Without cause: minimum two weeks pay in lieu of notice + severance Unjust dismissal: Employers must have just cause Adjudication process: Informal Inexpensive (relative to courts) Broad range of remedies Copyright © 2020 Emond Montgomery Publications. All rights reserved.