Canadian HR Reporter

CANADIAN HR REPORTER AUGUST 2019 EMPLOYMENT LAW 9 their unions. So, I think that we are in for potentially a significant amount of disruption in the fed- eral sector." e alterations were developed and brought into force quite quickly, without a lot of consul- tation or thought put into how they will play out on the ground, he says. "Most federal employers were not averse to changes and mod- ernization of labour standards at all. What many federal employ- ers are upset about is the fact that there wasn't consultation — or at least extensive consultation. And there seems to have not been any thought put into these sorts of specific examples, specific dis- ruptions… and whether or not carefully tailored exceptions can be created to ensure that these challenges don't play out in a neg- ative way." A high percentage of the fed- eral sector is unionized, and the code is the floor of rights that people have, says Jodi Gallagher, a partner at Hicks Morley in Lon- don, Ont. "ere's going to be a lot of collective agreements that don't have a lot of these items. And so, it is bringing up the floor of rights that people have," she says. "I have a number of clients that are in bargaining right now… And these clients have had to make cost es- timates and be aware of what the changes are." Scheduling considerations One of the major changes involves scheduling, as employers must now give 96 hours' written notice of an employee's work schedule and 24 hours' written notice of a shift change. It's a dramatic move, says Ilan Burkes, partner at Harris & Com- pany in Vancouver. "Economies are changing, and you look at a lot of collective agreements, they're kind of shift- ing away from that. Employers are trying to be as nimble and flexible as possible, and now the code will go the opposite direction and require that employees be given [notice] 96 hours in advance be- fore scheduling changes," he says. "A lot of collective agreements have this type of language, but what you'd find in those collective agreements is a provision where, if the employer fails to adhere to that, then they have to pay over- time. Here, the employee could just refuse to work that shift." e 24-hour provision will not apply in situations that the em- ployer could not reasonably have foreseen, for example, those that present or could reasonably be ex- pected to present an imminent or serious threat to the life, health or safety of any person, among other things, says Gallagher. Employers will have to change their mindset to comply with these provisions, she says, "be- cause the exceptions are rela- tively narrow. And so, it requires a different thought process and planning." It's not clear how these excep- tions will be interpreted, but there "appears to be a relatively high onus on the employer to justify a change," says Burkes. "Operationally, especially on the scheduling side, I think that a lot of [employers] are going to have to think very carefully about how they schedule now, which is something they probably didn't have to do as much before." Overtime provisions Another major change gives em- ployees the right to refuse over- time for family responsibilities. e code is "relatively descriptive" on what that means — but this is- sue has already been addressed in a lot of collective agreements and "quite carefully circumscribed," says Pigott. "[e code] doesn't create cer- tainty as to how these situations will unfold on the ground in a couple of months. And, in some cases, the specificity that's in- cluded in the legislation is at odds with the collective agreement provisions or the practices on the ground in specific industries and specific company. So… how do those inconsistencies, how do those conflicts work themselves out? We just don't know." In general terms, the Canada Labour Code will trump a collec- tive agreement, unless the code specifically says the agreement can be different, he says. "But the decision needs to be made by an arbitrator... so you need to have litigation and an arbitrator finding that, yes, the collective agreement provides different entitlements than the code. But, overall, those collective agreement entitlements are more generous than what the code re- ports and, therefore, they're al- lowed to continue in force. And so, in either scenario, we've got a lot of uncertainty." While most people would agree with the right to refuse overtime, says Burkes, the question should be: Who's going to adjudicate that? "If the employer says, 'No, you're coming to work,' I guess it's a complaint that's filed. And the collective agreements have provisions that are set up to ad- dress these types of disputes. e Canada Labour Code doesn't re- ally have that type of system in place to adjudicate this. And that's the concern I have. I'm not sure what will happen if the employer and the employee are at odds as to whether there is a true family responsibility issue that arises within the meaning of the code." In the collective agreement context, the employer can man- date that an employee work a shift, and the worker can then grieve this, he says. "What happens here? I'm not entirely sure." e code also allows for over- time to be compensated via paid time off. "It goes to the current prac- tices," says Pigott. "ere's always been a requirement to pay over- time… but for these 24-7, contin- uous operations, the expectation was not that you would necessar- ily be giving employees significant paid time off for working over- time. So, it really could impact how employers structure shifts and schedules and their expecta- tions around when employees will be available for work." e change captures current practices in many workplaces, says Gallagher. "e code was silent about es- sentially banking overtime. And this issue came up in some of the litigation we've seen around com- pensation for overtime. So, this provision is really codifying what many employers do already. It's not a surprising or new concept that you can bank overtime. And that you'd have to agree [to] in writ- ing... and here there are parameters around how quickly it has to be used or paid out," she says. "It resolves the question mark that was there, because of the si- lence of the code…. So, I wouldn't say it's a significant change; it's just clarifying how it needs to work." Changing work conditions As part of the changes, employees with at least six months of con- tinuous service will be able to for- mally request a change in working conditions, such as work schedule or location. Employers must then respond in writing, either grant- ing or denying the request or set- ting out an alternative change, says Gallagher. "Employers are going to see a lot of requests for people to work from home or changes to their work schedules," she says. "is is a broader provision than a change to a work schedule because of, for example, child care. So, the duty to accommodate from a family status perspective, I think, is a different situation. Here, it doesn't have to be related to a family status or a child-care or elder-care situation." And that would be dealt with differently because it's not a hu- man rights consideration, she says. "It doesn't give a right to the change," says Gallagher. "ere might be a perception… that it's actually a right to change your work schedule, work location or other conditions of your employ- ment, when really it's a right to ask for that and a write to get an answer in writing, so you can't be ignored." Currently, an employee has an entitlement under the Canadian Human Rights Act to request a change if they, for example, have a disability, family responsibil- ity or religious characteristic that entitles them to accommodation circumstances, says Pigott. "Someone can make a request for a change in their work ar- rangement, their schedule, their work location, and the employer is required to consider it," he says. "And while the employer doesn't have to grant the request, it must provide good faith reasons as to why the change is not possible." Election concerns One consideration for employers in looking at these changes is the looming federal election. As seen in provinces such as Alberta and Ontario, Conservative govern- ments have repealed previous changes made by the Liberals, says Pigott. "The question now becomes — at the federal level — will we see the provincial story play itself out? If a Conservative govern- ment is elected this fall, will we see the Conservatives… take an- other look at the changes that are coming into force on Sept. 1 and take action? "ese abrupt shifts back and forth, I don't think anyone in the employer community welcomes that, because the employers are the ones that need to adjust their operations on the ground," he says. "And the shifting sands of labour standards changes… you want stability, that's the impor- tant thing." It's frustrating for employers because there's so much change at hand, much of which has been put through in a very confusing way, says Gallagher. "And then there's a question mark, because of the election — how much of this is actually going to remain in place afterwards?" e risk is that employers may bargain some of these compo- nents into a collective agreement without caveats, and then a roll- back happens, she says. "ey need to be careful about how they deal with these issues. You can say, 'To the extent it's pro- vided under employment stan- dards legislation,' 'to the extent it's provided under the Canada La- bour Code,' or you can essentially remain silent. And then the code minimum is going to apply... And then if the code minimum goes away, it no longer applies." Workers can request change to work conditions LABOUR CODE < pg. 1 CAREpath is the only Canadian Health Care navigation program of its kind offered in Canada. We have extensive experience in navigating Canadians through the health care system. Cancer Assistance Seniors' Care Assistance HealthCare Assist Your Wellness Partner "e code was silent about banking overtime. And this issue came up in some of the litigation around compensation."

• Cover