In Canada, employment standards are governed by the provinces and territories. Each province and territory have their own legislation that deals with all things employment related. In Alberta, the legislation is called the Employment Standards Code (“the Code”), and it has recently gone through some major changes.

Alberta has some of the oldest workplace legislation in Canada and it has not been updated in almost 30 years. Over this period of time, the workplace, the nature of work, family life, and standards have changed a lot. Changes include a growth in part-time work, shift work, and more flexible schedules for those with children or elderly parents who need care. It is necessary to have legislation that reflects the current workplace and workforce.

The NDP government introduced The Fair and Family-friendly Workplaces Act, which proposed changes to both the Code as well as the Labour Relations Code. Earlier this past year, Albertans provided feedback on these two pieces of legislation, and more than 7,000 submissions were received and reviewed as part of the development of the proposed legislation.

The bill was passed in June 2017, and many changes are set to take place on January 1^st, 2018. Now is the perfect time to review what the Code is for, who it effects, and to discuss some of the most important changes Albertans will see in 2018.

What is the Employment Standards Code?

The Code is the legislation that governs employment relationships in Alberta. It sets out minimum standards that most employers in the province must adhere to. Failure to adhere to these minimum standards could result in litigation and potentially severe judgments against the employer

The key word is “minimum.” These standards are what is minimally required by employers. A lot of employers go beyond the minimum, but these standards are in place to provide a basic “floor” of rights for employees, protect them, and ensure that they are treated fairly and humanely.

People most often think of minimum wage when they think about minimum standards. However, the Code covers a great deal more than just wages. It also addresses:

• Hours of work and rest;
• Payment of earnings;
• Deductions from earnings;
• Overtime hours and pay;
• Job protected leaves (bereavement, compassionate care, critical illness, domestic violence, long-term illness, maternity and parental leave, personal and family responsibility leave);
• General holidays and vacations (and pay);
• Termination;
• Complaints and anonymous tips;
• Employment records; and
• Youth employment.

Who does the Employment Standards Code Apply to?

The Code applies to approximately 85% of all employment relationships in Alberta. It does not apply to individuals who work in federally regulated industries, such as banking or radio and television.

Unionized individuals are also covered by the Code in the sense that collective agreements (which are the agreements made between the union and the employer on behalf of the employees) cannot go below the minimum standards set out in the Code. While some collective agreements may allow the standards to go below the minimums set out in the Code, the Code’s minimums are still applicable, and employees can dispute the agreement. However, more often than not, collective agreements have better provisions, including higher pay or more vacation time.

Apart from those who work in federally regulated industries, there are other types of jobs and employees that are excluded from the coverage of the Code. Why would employees be excluded from the minimum standards? Some jobs and industries may have their own standards and therefore have their own rules. These include:

• Ambulance attendants;
• Caregivers;
• Construction workers;
• Domestic employees;
• Farmers and ranchers;
• Restaurant and food services workers;
• Salespeople (commission pay plans or direct sales);
• Taxicab drivers; and
• Truck drivers.

This does not mean that none of the Code applies to people who work in these roles. They may be exempt from one or more minimum standards, and they may have their own legislation that provides other standards. Another example would be members of a municipal police service. They are covered by the Police Act (in Alberta) and therefore are not covered by the Code. While those who are covered by a different piece of legislation are excluded from the Code, there are 4 sections that still apply: maternity, parental, reservist, and compassionate care leave benefits.

Self-employed workers and contractors are not covered by the Code, specifically because the Code only applies to employees and employers. Self-employed workers would only be covered if they were also employers.

How is the Code Changing in 2018?

As the title of the new bill suggests, the pending changes are meant to be fairer and friendlier to those who have families and to reflect current work realities. Employment is not what it used to be. It has changed and become very diverse. Some of the major highlights include

Maternity/Parental Leave

• Unpaid job protection will be extended from 15 to 16 weeks;
• An employee may be terminated during the entitlement period only for situations where the business is closed or suspended;
• Leave will not apply if the pregnancy terminates more than 16 weeks before the due date; and
• An employee whose pregnancy terminates within 16 weeks of the due date will still be eligible for maternity leave. The leave will end either 16 weeks after the leave began or 6 weeks after the pregnancy is terminated.

Minimum wage

• Employers will no longer be allowed to pay employees with disabilities less than the minimum wage. Permits that used to allow employers to pay employees with disabilities less than the minimum wage will no longer be available.

Overtime

• Overtime agreements will allow time to be banked for 6 months rather than 3; and
• Overtime banking will be calculated at 1.5x for all overtime hours worked, rather than hour-for-hour.

General Holiday and General Holiday Pay

• The requirement to have worked for 30 days in the 12 months before the holiday will be removed;
• The distinction between regular and non-regular days of work will be eliminated; and
• General Holiday pay will be calculated as 5% of wages, general holiday pay, and vacation pay earned in the 4 weeks immediately preceding the holiday.

Vacations and Vacation Pay

• The Code will be clarified to indicate that employees must be paid 4% or 2 weeks of their total wages as vacation pay until they have been employed for 5 years, after which they must receive at least 6%; and
• Half-day vacation increments will be allowed, up from a minimum of one day.

Termination and temporary Lay Offs

• Employers will be prohibited from forcing employees to use entitlements (such as vacation or overtime) during a termination notice period, unless agreed to by both parties.
• The possibility of an indefinite temporary layoff will be eliminated by requiring layoffs be limited to 60 days within a 120-day period. Layoffs could be extended if wages and/or benefits are paid and the employee agrees; and
• Termination pay will be calculated based on the previous 13 weeks of employment when the employee actually worked, not just the calendar weeks before the termination.

At HMC Lawyers we work with both employers and employees on all matters of employment. If you want to know how your business or employment is going to be affected by the changes to the Employment Standards Code, our experienced employment lawyers are here to help. Contact HMC Lawyers online or call 1-800-480-3534 to make an appointment today.