On July 29, 2020, Bill 32, also referred to as the Restoring Balance in Alberta’s Workplace Act, received royal assent and was passed into law.
Bill 32 proposes to overhaul rules relating to hours of work, rest periods, layoffs, and payroll. There are also changes for unionized employees involving discipline, hours of work, strikes, lockouts, and picketing, collective agreements in the construction industry, and specific industry changes involving nurse practitioners and construction and maintenance unions. These changes are being made through amendments to the Employment Standards Code and the Labour Relations Code.
The Bill has been promoted by the Alberta government as necessary to support economic recovery and get Albertans back to work. It proposes to provide employees and employers with more transparent rules that promote fairness and productivity.
One of the more significant changes to the Employment Standards Code is the inclusion of a provision, which no longer requires employers to include vacation pay and general holiday pay in the calculation of an employee’s average daily wage in relation to pay for a general holiday. Average daily wage may now be calculated as the employee’s total wages averaged over the number of days they worked in the 4 weeks immediately before the general holiday at issue, or the 4 weeks ending on the last day of the pay period that occurred just before the general holiday.
For example, if an employee worked from June 3, 2020 to July 1, 2020 and did not work on July 1 (Canada Day), but otherwise would work that day if it was not a general holiday, then their pay for July 1 could be equal to the total wages averaged over the number of days worked between June 3, 2020 and July 1, 2020.
Employers may also be permitted to lay employees off for a period of 90 days in a 120-day period, rather than the 60 that is currently permitted under the Employment Standards Code. Separate rules relating to layoffs apply during the Covid-19 pandemic.
Another significant change for employers relates to the rules surrounding averaging agreements. Currently, employers can only change an averaging agreement with the consent of the employee. Under Bill 32, employers would be permitted to change the terms of an averaging agreement on two weeks’ notice to the employee and would no longer require the employee’s consent. Averaging agreements could also have an averaging period of 52 weeks as opposed to the current 12 weeks under the Employment Standards Code. Further, employers may not have to provide daily overtime, unless daily overtime is expressly included in the averaging agreement.
Bill 32 also allows employers to hire 13 and 14 year olds with greater ease than under current legislation. These workers can now be hired without a permit for certain specified types of jobs (i.e. light janitorial work, coaching, and tutoring).
Finally, one of the more notable changes is the inclusion of a provision that makes it easier for employers to obtain exemptions or variances from provisions under the Employment Standards Code. Currently, the Director may only issue a variance or exemption if the provision to be varied or exempted and the extent to which it may be varied or exempted is authorized by the regulations to be varied or exempted under this section, and the Director is satisfied that issuing the variance or exemption meets the criteria established by the regulations. Under Bill 32, there is no longer a requirement that the Director be satisfied that issuing the variance or exemption meet the criteria established by the regulations, among other smaller amendments.
Under Bill 32, specific timelines relating to the certification and revocation process will be removed, but applications must be processed as soon as possible and must occur within 6 months of the application date.
Bill 32 will add a provision to the Labour Relations Code that specifies when remedial certification can be used. For example, remedial certification may only be available when no other remedy is sufficient to counteract the impacts of the employer’s misconduct and the true wishes of employees can not be determined.
There will also be changes to renewal of collective agreements and collective agreements in the construction sector. If an employee works in the construction industry and chooses a new union, their existing collective agreement will continue to apply until it expires. Further, employers and unions can renew a collective agreement before it expires if employees provide their consent.
One of the most significant changes under Bill 32 in relation to unionized workplaces is the inclusion of provisions that place new limits on an employee’s ability to strike, picket, or conduct a lockout. Under Bill 32, employers could now ask the Labour Relations Board for orders on illegal strikes and picketing to be filed with the courts. This would potentially mean that a violation of the order amounts to contempt of court. Further, employers may have to continue employees’ payment of union dues during an illegal lockout and employers may have to suspend employees’ payment of union dues during an illegal strike.
A number of changes have also been made specifically to unionized workplaces in the construction sector. Employers will be provided with more direction under Bill 32 in relation to large construction projects. Specifically, these directions include, but are not limited to: major construction projects being approved by the Minister rather than Cabinet, principal contractors receiving permission to delegate authority for bargaining (with the consent of the Minister of Labour and Immigration), and maintenance workers on major projects being prohibited from striking or locking out.
Finally, Bill 32 requires trade unions to indicate the percentage of union dues, assessments, or initiation fees that relate to political activities, including general social causes or issues, charities or non-governmental organizations, organizations or groups affiliated with a specific political party, and any other activities prescribed by the regulations. A person is not required to pay any of the union dues, assessments, or initiation fees relating to these specified activities, unless they make an election in accordance with the regulations.
Many of the changes to the Employment Standards Code will take effect November 1, except for the following changes, which will take effect August 15:
- changes to requirements relating to group termination notice
- length of temporary layoffs
- flexible rules applying to variances
Changes to the Labour Relations Code will take effect upon Bill 32 receiving royal assent, except for the following changes, which will take effect upon proclamation:
- access to union financial statements/opt-in for union dues
- early renewal of collective agreements
- rules for secondary picketing
- “all-employee” units in the construction sector
- building trades of Alberta project agreements
- board standard of review (grievance arbitrator decisions)
- including nurse practitioners in the Labour Relations Code