Question Period Note: LABOUR STANDARDS ON FLEXIBLE WORK ARRANGEMENTS, NEW LEAVE PROVISIONS AND OTHER CHANGES TO THE CANADA LABOUR CODE

Amendments to the Canada Labour Code through the Budget Implementation Act, 2017, No. 2 (Bill C-63) and the Budget Implementation Act, 2018, No. 2 (Bill C-86) include a new right for federally regulated employees to request flexible work arrangements and new measures supporting flexibility in the workplace.

• Canadians increasingly face pressure to balance work and family responsibilities and this can affect their well-being and their effectiveness at work.
• Flexible work arrangements, such as flexible start and finish times and the ability to work from home or take time off without fear of losing their job, can help employees manage their personal responsibilities and benefit employers through improved recruitment, retention and productivity.
• Amendments to the Canada Labour Code provide federally regulated employees the right to request a flexible work arrangement from their employer. They also create new leaves such as leave for traditional Aboriginal practices and leave for victims of family violence.
• These new provisions came into force on September 1, 2019.

• Part III of the Code applies to federally regulated private sector enterprises, most federal Crown corporations and some First Nations activities, and covers in total 18,630 employers employing over 935,000 workers (i.e. 6% of the Canadian workforce). Part III establishes minimum working conditions regarding hours of work, minimum wages, annual vacations, leaves, termination of employment and severance pay.
• Bill C-63 amended the Code to establish a new right for employees to request an FWA, that is, changes to the terms and/or conditions of their employment (e.g. hours of work, work schedule, location).
• The changes also introduced three new leaves:
o leave for traditional Aboriginal practices of up to five days;
o leave for victims of family violence of up to ten days (amended in Bill C-86); and
o family responsibility leave of up to five days (amended in Bill C-86).
• Bill C-63 introduced further measures to support flexibility in the workplace including:
o enhanced bereavement leave from three to five days, with the first three days paid.
o ability of employers and individual employees to modify work schedules and substitute general holidays;
o requirement for employers to provide employees with at least 24 hours’ notice before a shift change;
o compensation of overtime through paid time off;
o a limited right to refuse overtime to carry out family responsibilities;
o division, interruption and postponement of vacation leave; and
o repealing of the requirement to establish a Commission of Inquiry before making or amending regulations relating to certain hours of work provisions.
• In 2018, Bill C-86 introduced further changes to the Code to support better work-life balance. Specifically, it repealed family responsibility leave to introduce a new five-day personal leave, of which first three days are paid, that could be used for personal illness, family responsibilities and emergencies or to attend a citizenship ceremony. Additionally, the new leave for victims of family violence was amended to provide that the first five days of the leave paid.
• These changes support employees in achieving better work-life balance and benefit employers through increased productivity, decreased absenteeism, enhanced recruitment and retention, and more flexible and effective workforce utilization. They also support women’s participation in the labour market and help foster greater gender equality in Canada’s workforce and inclusive growth.
• No province or territory currently provides employees with a right to request FWAs under its labour legislation. However, there are examples in provincial and territorial labour laws of labour standards that provide a certain degree of flexibility to employers and/or employees (e.g. most provinces and territories provide compassionate care leaves and leaves to care for a critically ill child, and, in Ontario, an employee is entitled to up to 8 weeks of unpaid family caregiver leave to provide support or care to an immediate family member).
• Providing a right to request FWAs is in line with recent court decisions. Specifically, the courts have recently determined that family status protection under human rights law – such as the Canadian Human Rights Act – extends to a person’s family caregiving responsibilities. This means that, when an employee demonstrates that they have substantial childcare obligations that cannot be met in any realistic way due to their employer’s existing rules or policies, the employer has the duty to accommodate the employee to the point of undue hardship.

Data:
• Flexible Work Arrangements
o Work-Life Balance is Good for Business: According to Stephens and Joubert (2001), the direct and indirect economic burden of mental illnesses in Canada was estimated to be $14.4 billion in 1998.
• Personal Leave:
o According to Labour Program data, about 332,000 employees or 40% of workers in the federally regulated private sector currently have no access to paid or unpaid short-term family leave.
• Leave for Victims of Family Violence:
o The Labour Program estimates that in 2015, approximately 16,600 federally regulated private sector employees or their minor child are victims of family violence

• The Budget 2017 committed to modernizing the Code to ensure that it reflects the changing world of work, and to better support Canadian workers as they seek to balance the responsibilities of work and family. In particular, the Budget announced changes to the Code that would provide federally regulated employees with the right to request flexible work arrangements (FWAs) from their employer.
• Further, Budget 2018 committed to making the first five days of the leave for victims of family violence paid.
• These and other changes to the hours of work, vacation and general holiday provisions of the Code aimed at supporting flexibility in the workplace were included in the Budget Implementation Act, 2017, No. 2 (Bill C-63), which received Royal Assent on December 14, 2017. Additional changes to support flexibility in the workplace were also introduced in the Budget Implementation Act, 2018, No. 2 (Bill C-86), which received Royal Assent on December 13, 2018.
• Regulatory consultation activities, which focused on the implementation of the new Code provisions, were completed in Fall 2018 and included a presentation and discussion session with Indigenous partners on the new leave for traditional aboriginal practices and a discussion paper inviting written feedback from stakeholders, including those consulted in 2016.
• Stakeholders consulted in September and October 2018 were generally supportive of the proposed consequential and administrative regulations. Stakeholders made legislative, regulatory and operational recommendations, and raised concerns around implementation, administrative burden and costs to employers.
• The amended Canada Labour Standards Regulations (Regulations), which were exclusively consequential or miscellaneous in nature, were published in the Canada Gazette, Part I in June 2019.
• During regulatory consultations with stakeholders, including employer and employee representatives, held from May to August 2019, stakeholders expressed diverging views regarding a number of new provisions, such as 24 hours notice of shift change and limited right to refuse overtime.
• Employers raised serious concerns about the impact of the hours of work changes on continuous, 24/7 operations in sectors across the federal jurisdiction and have requested that certain classes of employees be subject to regulatory exemptions.
• Employee representatives expressed support for the new hours of work provisions and oppose exemption regulations, emphasising the importance of modernization efforts and work-life balance.
• These legislative and regulatory changes came into force on September 1, 2019.

“Flex work is not about working less, it’s about working better.”
Vanier Institute of the Family
National Roundtable, June 23, 2016

“A diagnosis of MS shouldn’t mean someone has to give up working . . . But the truth is that many people feel they have no choice but to leave a job, even though they are willing and able to stay.”
Multiple Sclerosis International
Written Submission, June 29, 2016

“An elder may indicate to an employed relative or community member that they are craving fresh seal meat. This may add pressure to take leave to go seal hunting during the prime seal hunting season. In this day and age, an Inuk hunter requires considerable funds to purchase hunting equipment and supplies. This means they need a job to ensure they have the ability to buy those necessities. On the other hand, if they are working, they do not have as much flexibility to go hunting. The importance of providing nutritious foods of choice to the community, the role of hunters and the strengthening and passing on of cultural practices should be valued and accommodated, just as much as the wage economy.”
Nunavut Tunngavik Inc.
Engagement Activity 2016

“Flexible work arrangements, leaves and other benefits for employees serve as important recruitment and retention tools, and banks are very cognizant of that fact as they compete with other employers for talent.”
Canadian Bankers Association
Written Submission, June 30, 2016