Proposed amendments to the Employment Standards Code

Deductions from Earnings

• Employers may deduct from employees’ pay overpayments and vacation pay provided to employees in advance of being entitled to it without written authorization from the employees
• Employers cannot, however, make such deductions if more than six months have passed since the overpayment
• Employers must still provide written notice to employees prior to making the deduction, but authorization from the employees is no longer required

Averaging Agreements

• Employers can impose an averaging agreement for hours of work as opposed to obtaining employee agreement, as long as the group of affected employees are not bound by a collective agreement
• Employers must give at least two weeks’ written notice of a requirement to work an averaging arrangement, unless otherwise agreed
• Bargaining agents may agree to an averaging arrangement as part of a collective agreement
• If there is no collective agreement in place, averaging arrangements must be in writing
• The effective period of averaging arrangements can last from 12 weeks to 52 weeks
• Employers must provide a schedule that sets out the daily and weekly hours of work under the agreement, subject to amendment by the employer in accordance with the averaging agreement

Rest Periods

• Employers may change employee shifts without providing 24 hours’ written notice and eight hours of rest between shifts if different notice or hours of rest provisions are agreed to under a collective agreement
• Employees who work a shift of more than 10 hours are entitled to a second rest period of at least 30 minutes, which may be paid or unpaid
• The timing of an employee’s second rest period is in the sole discretion of the employer, subject to any agreement reached with the employee

Daily Wages

• Daily wages for general holidays are now calculated by averaging the employee’s wages by either the four week period before the general holiday, or the four week pay period before the general holiday, at the employer’s discretion

Vacation Entitlement

• Periods of leave are explicitly included when calculating an employee’s years of employment for the purpose of their entitlement to vacation time

Terminations and Lay Offs

• Employers no longer need to provide notice of termination under section 137, which provided for varying periods of notice depending on the number of impacted employees in a group termination
• Timing requirements concerning temporary layoff notices are removed
• The layoff period is increased permanently to 90 days within a 120 day period
• This increase does not impact the 180 day lay-off period instituted in the context of COVID-19, which remains in force
• Following a termination, employers may pay employees their final pay 10 consecutive days after the end of the pay period in which they were terminated, or 31 consecutive days after the last day of employment, rather than within three days of the employee’s termination

Group Termination

• The notice period required for a group termination of over 50 people is reduced to four weeks

Powers of the Board and Chairs

• Allow a Chair or vice-chair to sit alone to decide certain issues such as investigations or supervising votes by secret ballot, or in the event it is deemed necessary by the Chair
• Permit the Labour Relations Board (“Board”) to order another representation vote, only certify a trade union as a bargaining agent if no other remedy or remedies would suffice, and conversely refuse to certify a trade union if the Board believes other remedies could be sufficient
• The Board may dismiss a complaint regarding fair representation where the Board determines a fair and reasonable settlement offer was made

Reverse Onus Rules

• Employers only bear the reverse onus of proof in instances of dismissal or discharge
• New reverse onus for unions in cases where there is evidence of intimidation or coercion, or where the provisions regarding opting-in of union dues are breached

Union Dues

• Introduce requirement for union members to opt in to having a portion of dues go to political or other activities
• Require unions to prepare financial statements that detail the trade union’s affairs to each member
• Allow the Board to stop the collection of union dues during illegal strikes, and order an employer to pay union dues during illegal lockouts
• Failure to pay these dues during an illegal lockout may be collected from the employer by way of a civil action

Certification

• Extend the timeline for the Board making its final decision to grant certification to six months after the date of application, with the potential for extensions of this timeline by the Chair – a significant extension from the previous limit of 20 working days
• Trade unions may apply for certification in more than one trade jurisdiction

Strikes and Lockouts

• Introduce restrictions on strikes and lockouts until a mediator is appointed and the cooling-off period has expired
• Institute new limits on secondary-site picketing, eliminating unions’ abilities to picket at secondary sites unless permitted to do so by the Board
• The Board is empowered to either permit secondary site picketing, determine which locations may be picketed at, and make other restrictions in regards to how picketing is carried out
• Picketers may not block or delay someone from crossing a picket line

Arbitrations

• Terminate the binding arbitration process for post-secondary institutions, despite such process being agreed to in collective agreement
  • This termination includes ongoing arbitrations, and voids any awards issued
• Allow the Board to order that non-post-secondary disputes be resolved through arbitration, and no longer consider whether unfair labour practices occurred in the consideration of this choice
  • Instead, the Board’s decision to order arbitration will focus on a party’s refusal to bargain collectively, recognize the authority of the other party, and failure to make reasonable effort to conclude a collective agreement
• Remove arbitral discretion to provide timeline extensions in the grievance or arbitration processes
• Allow the Board to set aside awards of arbitrators, remit a matter back to the arbitrator or a different arbitrator, and stay proceedings before an arbitrator
• Eliminate legislative reasonableness as the standard of review, and re-institute standard appeal provisions
• Institute compulsory arbitration for collective agreements relating to major construction projects

The vast majority of these amendments to the Labour Relations Code come into force on Proclamation.