Labour & Employment Legislative Round-Up

By Kai Ying Chieh, Articled Student

2018 has been a busy year in labour and employment law in BC. The BC Government implemented a number of changes to the BC Employment Standards Act this year, and is looking to make major amendments to the Labour Relations Code. This article will review some of the amendments already in force as well as potential changes coming down the pipeline for the next legislative session.

New and Extended Leaves Under the Employment Standards Act

Earlier in 2018 a number of amendments were made to the BC Employment Standards Act (the “ESA“), which governs most non-union employees in BC. These changes, which are already in force, primarily affect employees’ entitlement to various leaves of employment. Future amendments have been recommended for other areas of the ESA, including hours of work and overtime, but those recommendations have not yet formed the basis of any changes to the ESA.

Changes to Pregnancy, Parental, and Compassionate Care Leave

The amendments have extended employees’ entitlement to maternity, parental, and compassionate care leave. Each of these provisions will be discussed in full, below:

• Maternity leave – Under prior legislation, expectant or new mothers could take up to 17 consecutive weeks of unpaid pregnancy leave (often called maternity leave), beginning up to 11 weeks prior to the expected birth date. Under the amended legislation, birth mothers may now start their leave up to 13 weeks prior to the expected birth date.
• Parental leave – In December 2017 new federal EI maternity and parental benefits came into effect. The amendments to the ESA regarding parental leave align the provincial legislation with the amendments made to the federal Employment Insurance Act. Previously, a birth mother was entitled to unpaid parental leave of up to 35 weeks, beginning immediately after the end of their pregnancy leave. The amendments have increased this to 61 consecutive weeks, so that a birth mother can have a total possible pregnancy and parental leave of 78 weeks (18 months). The amendments also increased unpaid parental leave for partners, non-birth parents or adopting parents to 62 consecutive weeks of parental leave within 78 weeks (18 months) of the child’s birth or adoption.
• Compassionate care leave – Previously, an employee could take an unpaid eight-week leave to care for and support a terminally ill family member who faced a significant risk of death within a 26 week period. This leave allowance has increased to 27 weeks which can be taken any time within a 52-week period.

Child Death and Crime-Related Child Disappearance Leave

Under prior legislation, employees were entitled to up to three days of unpaid bereavement leave in the event of the death of a member of the employee’s immediate family. Under the amendments, two additional leaves were added to provide for unpaid leaves in the event of the disappearance or death of a child.

• Child death leave – The amendments established a new unpaid, job-protected leave of up to 104 weeks (two years) for an employee whose child, under the age of 19, dies under any circumstances. The leave must be taken continuously, unless the employer otherwise consents.
• Crime-related child disappearance leave – The amendments have brought BC in line with other provinces in providing employees with the right to a job-protected leave if their child, under the age of 19, disappears as a result of a crime. This provision provides up to 52 weeks (one year) of leave.

Employers should be aware that these changes to the ESA may affect the legal compliance of their workplace leave policies. The amendments may also affect the leave entitlements for employees currently on leave. Employers who are unsure of their legal obligations should consult with an employment law professional for advice on best practices regarding statutory leaves.

Review of the Labour Relations Code

The Labour Relations Code (the “Code“) governs the relationships and conduct between employers, unions, and union employees in BC. The Code was last amended in 2002, with the last comprehensive reviews of the Code taking place in 1992 and 2003. As a result, the BC Government has engaged a panel of three special advisors to independently review the Code, aiming to produce a report to the Minister of Labour this month that will be considered when proposing amendments.

A key component of the Review Panel’s process took place from February 19 to April 24, 2018, when the Panel invited the public to consult on the state of the Code and make recommendations for potential changes. A number of issues were raised by various organizations, some of which may feature prominently in the Panel’s ultimate findings. A review of two issues raised may assist employers in preparing for the eventual legislative amendments.

Secret ballot vs. card-based certification

• The debate over whether union certification should be achieved through a secret ballot vote or a card-based system has long been a topic of discussion in labour relations, and was significant in the submissions made to the Panel by both unions and employers.Currently, the Code mandates a secret ballot vote system, which requires a mandatory certification vote after union membership cards are signed by a majority of employees in the workplace. A union will be certified only where the union receives majority support in the secret ballot vote. Card-based systems rely primarily on the union membership cards to certify a bargaining unit. When a majority of employees sign a union membership card, the union is automatically certified, without the need for a certification vote. The Canada Labour Code, as well as the legislation in Newfoundland and Labrador, Manitoba, and Quebec all provide for card-based certification.In the submissions to the Panel, proponents of moving toward a card-based system argued that the rate of unionization tends to drop if a secret ballot vote is required, and that the period of time required to carry out a vote invites the opportunity for interference from employers. In comparison, proponents of the secret ballot vote system expressed their concern that a shift away from the current system would subject employees to peer pressure during organizing drives, and would remove the opportunity for employers to engage with their employees before certification is granted.

Sectoral bargaining

• Many of the submissions to the Panel recognized how employment relationships have changed since the Code was last amended in 2002. Submissions from union organizations and employer organizations alike reference the decline in “traditional” employer-employee relationships and the flexibility increasingly sought by workers to determine the terms and conditions of their employment.A number of organizations suggested that sectoral collective bargaining should be put in place to recognize the proliferation of short-term contract work. Sectoral collective bargaining would establish a single collective agreement within a defined sector, which would allow employees to unionize in sectors that are traditionally hard to unionize, such as domestic workers, retail and service workers and artists. Along the same lines, some groups suggested that employer successorship and common employer provisions should be strengthened, so that when a sale of a business occurs the union certification is more likely to be preserved.In comparison, other groups emphasized the right of employees and employers to autonomy and self-determination, arguing that broad legislated changes aimed at creating a system of sectoral bargaining would inhibit employers from directly addressing the needs of their employees and businesses. Rather, it was argued that sectoral bargaining would bind newly-certified employers to collective agreements that other parties had previously negotiated.

This is only a taste of the broad scope of issues raised by submissions to the Review Panel. A myriad of perspectives will need to be taken into account by the Review Panel in formulating their recommendations to the BC government. At this early stage, it is still unclear what legislative amendments will be proposed; however, there may well be drastic changes to our provincial labour relations scheme on the horizon. Employers and unions alike should be aware of what these potential changes may mean for the workplace and labour relations.