2019 year in review: a changing landscape for employment and labour law in Alberta

The United Conservative Party won a majority government in the 2019 Alberta general election and has introduced, among other bills and regulations, Bill 2: An Act to Make Alberta Open for Business and Bill 21: Ensuring Fiscal Sustainability Act. Bill 2 restores a number of provisions that were changed or repealed under the former government, while Bill 21 proposes sweeping changes affecting numerous pieces of legislation, including the Employment Standards Code.

Amendments to the Employment Standards Code

On September 1, 2019, the following changes came into effect:

• General Holiday Pay: The amendments re-implement the requirement that employees work at least 30 days in the last 12 months before being entitled to a paid general holiday. The amendments also return to the previous regular / irregular workday distinction; general holiday pay is again dependent upon whether the general holiday falls on a workday and whether the same is normally a workday for the employee.

• Overtime: The ability of employees to bank overtime as straight time off at a 1:1 ratio has been restored. Previously, employees were entitled to bank an hour of overtime and take an hour and a half of time off at a later date. This amendment has made having a “flexible averaging agreement” superfluous. For this reason, provisions relating to flexible averaging agreements have been repealed. “Hours of work averaging agreements” remain unaffected.

The following changes have been proposed and are expected to come into force in 2020:

• Definition of “employee”: The current definition of employee will be amended to allow excluding certain classes of individuals in the regulations. These classes have yet to be determined.

• When complaints may be refused: If passed, employees covered under a collective agreement will no longer be able to make Employment Standards complaints. Rather, unionized employees will be limited to the dispute resolution processes set out in their collective agreement and other legislation.

Amendments to the Labour Relations Code

On May 27, 2019, the following changes came into effect:

• Secret Ballot Vote: The mandatory secret ballot vote process for union certification applications was restored. An application for certification will still require 40% support to proceed and majority support will still be required for any certification vote; however, the previous “card-based certification” based on 65% support has been struck. 

• Union Cards: The time period during which signed union cards will remain valid has been restored to 90 days. Union cards are the first step by which a union proves to the Labour Relations Board it has the requisite certification support.

• Marshalling of Proceedings: The marshalling provisions have been strengthened. These provisions are aimed at reducing the duplication of employment claims in multiple forums such as labour relations, employment standards, workers’ compensation, arbitration, privacy, human rights, and any other body determined by the Labour Relations Board (specifically excluding matters before the courts, professional associations, and the ombudsman).

The following changes have been proposed and are expected to come into force in 2020:

• Replacement Workers: The prohibition on using replacement workers during a strike or lockout by essential services workers will be lifted. Employers will be able to use either designated essential services workers, replacement workers, or capable and qualified persons who are neither members of the bargaining unit nor replacement workers to perform essential services during a strike or lockout.

Other initiatives

• Minimum Wage for Young Workers: As of June 26, 2019, the minimum wage for student workers under the age of 18 years and enrolled in an educational institution was reduced to $13 an hour. The reduced minimum wage applies to work performed during a school break or for the first 28 hours in a work week. For any hours over 28 hours in a work week the minimum wage will be the standard rate ($15/hour). Overtime rules still apply.

• Minimum Wage Expert Panel: The government has also appointed a “Minimum Wage Expert Panel” to consult with workers, employers, and policy experts, analyze and publish economic data on the impact of minimum wage increases generally, and to assess the potential impact of a reduced minimum wage for hospitality workers. The panel is expected to conclude its mandate in early 2020.

• Employee Labour Relations Support Program: On October 1, 2019, the government established the Employee Labour Relations Support Program, which has the mandate to support and assist individual employees on matters under the Labour Relations Code, the Police Officers Collective Bargaining Act, the Public Education Collective Bargaining Act, and the Public Service Employee Relations Act.

Takeaways

As the year comes to an end, employers should ensure all of the above-noted changes are implemented and reflected in their employment practices and policies. Employers should also consider what impact any new and anticipated provisions will have on their operations and plan accordingly.

We expect to see more changes to Alberta’s workplace laws in 2020. With its promise to bring workplace reform to Alberta, the government recently announced it is exploring further changes to Alberta’s employment standards laws – including those related to vacation time, holiday pay, group terminations, and termination notices – in an effort to make Alberta’s workplace rules simpler and more efficient. We will provide further updates as changes are introduced and implemented.