McLennan Ross Assessment of Bill 2

Alberta Labour Law Changes Begin

May 28, 2019

By Tom Ross

Yesterday, the Government of Alberta introduced Bill 2 (An Act to Make Alberta Open for Business).

Bill 2 was promised during the election to reverse some of the NDP legislative changes that made labour and employment laws more friendly to unions, less democratic, and more onerous and expensive for employers to employ workers.

If passed unchanged, Bill 2 will deliver the following changes to Albertans for the purpose of fostering job creation. It will:

  • return to previous holiday pay requirements which distinguished between whether or not the holiday fell on a regular work day. The legislative changes made in 2018 added costs to employers by requiring them to pay holiday pay to employees for days the employees would not have worked anyway (e.g. a casual employee who might not work much at all would still be entitled to holiday pay for all statutory holidays). These changes were a disincentive to employing more workers. The new legislation returns to the previous approach by which holiday pay is only required when the holiday falls on a day which would be a regular work day for an employee. If the employee does not work on a holiday that is a normal work day, the employee is entitled to the average daily wage, which is still defined as 5% of an employee’s wages, vacation pay and general holiday pay earned in the 4 weeks immediately preceding a general holiday. If the employee works on a holiday that is a normal work day, the employee is entitled to either: a) the average daily wage plus 1.5 times the employee’s wage rate for each hour of work; or b) the employee’s wage rate for each hour of work on that day plus one day’s holiday, not later than the employee’s next annual vacation, on a day that would normally be a work day (paid at the average daily wage). If the employee works on a holiday that is an unscheduled work day for that employee, the employee is entitled to 1.5 times the employee’s wage rate for each hour of work. When an employee works an irregular schedule for which it is uncertain whether the holiday falls on a normal work day for that employee, the employee will be entitled to holiday pay if the employee worked on the same day of the week as the holiday in at least 5 of the 9 weeks preceding the holiday. Eligibility for holiday pay will again require that the employee has worked for the same employer for at least 30 work days in the 12 months preceding the holiday. This provision will come into force on September 1, 2019.
  • return to the banked overtime provisions under which banked overtime can be taken as time off work on an hour for hour basis (e.g. one hour of overtime is taken as one hour off work). There is no change to overtime pay at 1.5 times an employee’s normal hourly rate of pay. Banking overtime will still require employee agreement through Overtime Agreements. The NDP changes required banked overtime to be taken at 1.5 hours for each hour of overtime which was a disincentive for employers to agree to banked overtime. The Government of Alberta will retain one positive aspect of the NDP changes, which was that overtime under an Overtime Agreement may be banked for up to 6 months (or longer if under a collective agreement) before it must be taken or paid. This provision will come into force on September 1, 2019. Time off with pay earned under the existing legislation that is not provided, taken, and paid before September 1, 2019 must be provided at 1.5 hours off for each hour of overtime worked.
  • restore the mandatory secret ballot vote for union certification applications. The 40% support required to have a vote will remain but “card-based certification” based on 65% support will be removed. Votes will be mandatory in every case (in the absence of unfair labour practices by the employer) and majority support will still be required on any vote. Once this legislation is passed, the requirement for a certification vote will apply to all certification applications after May 27, 2019.
  • reduce the time allowed for unions to sign up new members for certification applications from 6 months back to 90 days as it was before changed in 2017 (also effective May 27, 2019).
  • strengthen the marshalling provisions of the Labour Relations Code to also apply to Human Rights applications and clarifying that it applies in respect to matters before the Labour Relations Board, arbitration boards, the Human Rights Commission, Employment Standards, the Privacy Commissioner, the Workers’ Compensation Board, a Board of Reference under the School Act, and any other body determined by the Labour Relations Board (and specifically excluding matters before the courts, professional associations, and the Ombudsman). The marshalling changes previously introduced were a positive change that allows the Labour Relations Board to streamline and limit unnecessary or duplicated employment claims in multiple forums (e.g. the same issues being claimed against employers through grievance arbitration, Employment Standards, the Labour Relations Board, and the Human Rights Commission, etc.). The legislation also protects an employee’s right to fair representation with respect to any human rights issue, including the duty to accommodate, that is to proceed by arbitration rather than through the Alberta Human Rights Act.
  • establish a program to provide support and assistance to individual employees with respect to 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. Unions and employers usually have legal guidance in respect to matters under this legislation, but individual workers often do not. These changes will help employees understand and exercise their rights in respect to both employers and unions. This provision comes into force on October 1, 2019, and the details of this program remain to be determined.

Some of the changes may depend upon regulations, in addition to legislation.

Yesterday the Government also introduced changes to the minimum wage by Order in Council that allows for a lower minimum wage for workers under age 18 who are still developing skills and experience. The change reduces the distinctive inherent in minimum wage legislation against employing young lower-skilled workers. The general $15 per hour minimum wage will remain, and the lower experienced wage will be $13 per hour. This new minimum wage takes effect June 26, 2019. The lower wage will apply for the first 28 hours worked by a student while school is in session and all hours when school is on break (e.g. summer). They must be paid $15 per hour for all hours worked above 28 when school is in session.

The Government is also expected to appoint 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, and assess the potential impact of a reduced minimum wage for hospitality workers (as Alberta had in the past and as exists in Ontario, Quebec, and B.C.).

The Government has explained that it wanted to reduce the regulatory burden on employers quickly, and by introducing Bill 2 it delivers on its platform. However, as the Government said in the Speech from the Throne, it intends to make other labour and employment law changes in the autumn. It will require more time to develop these changes. These changes are anticipated to include the following items:

  • changes to essential services legislation to address the current ban on using any replacement workers at employers involved in essential services.
  • protection to workers against being forced to fund causes and political parties through union dues without explicit opt-in approval.
  • changes to remedial certification. The NDP created an ability for the Labour Board to order certification without an employee vote in cases of employer unfair labour practices.

There may be many other possible changes. McLennan Ross will continue to keep you informed of new developments.

This update is a general overview of the subject matter and cannot be regarded as legal advice. Please contact
Dan Bokenfohr in Edmonton, Tom Ross in Calgary, Michelle Thériault in Yellowknife, or any member of our
Labour & Employment Practice Group for advice on this or any other labour & employment law topic.

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