Gender identity is increasingly becoming protected against discrimination as well. 9.2        What procedure applies to employment-related complaints? The rules governing a trade union’s right to take industrial action are set out in the respective jurisdiction’s labour laws. It does not apply to: National Defence Force, National Intelligence Agency, or; South African Secret Service. How long does the process typically take and what are the sanctions for failing to inform and consult? 8.5        Can an employer control an employee’s use of social media in or outside the workplace? However, fathers are also entitled to parental leave in all jurisdictions. 4.1        How long does maternity leave last? Except for dispositions of collective agreements that may require employers to notify a trade union in advance of a sale, employees have no information and consultation rights on a business sale. In general, the system seeks to minimize disruption by certifying trade unions as the bargaining agents for specific groups of workers, often all or part of the non-managerial employees in a company. 3.2        What types of discrimination are unlawful and in what circumstances? Nearly 80 percent of the workers had voted to join CUPE. Striking or picketing can only occur after the expiry of a collective agreement where certain conditions are met. Private sector employees are covered by the Canada Labour Code and the Canada Industrial Relations Board (CIRB). Employment contracts implicitly include a number of obligations for both employees and employers. Generally, purchasers are free to set the terms and conditions of the offers of employment that will be made to a vendor’s non-union employees in the context of an asset transfer. Issues a Labour Relations Consultant Can Help With. Work-family issues have become more and more important with the accelerated workforce participation of married women. The delay before parties to an employment-related complaint obtain a final decision depends on the forum in which the complaint is heard. Unless otherwise provided in a specific law or contract, employers do not require the consent of third parties before dismissing an employee. Practice Areas > Borden Ladner Gervais, Marie-Pier Emery Although the courts have never used a “rule of thumb” approach in determining the reasonable period of notice, judicial awards reach a typical maximum of 24 months for senior executives in their late 50s or early 60s with lengthy service. 6.9        Does an employer have any additional obligations if it is dismissing a number of employees at the same time? Labour relations acts and labour codes usually require that the purchaser of the shares or assets assume any applicable collective agreements. These termination notice periods are simply the statutory minimum periods of notice required. 7.4        How are restrictive covenants enforced? The labour rights and responsibilities of about 12,000 businesses and 820,000 of their employees are defined by the Canada Labour Code. These minimum statutory employment standards include: Employment standards legislation prescribes a minimum standard that employees cannot waive by contract. These payments are funded by deduction at source. In most jurisdictions, a mass termination will occur where 50 or more employees are terminated within a four-week period. Canadian employees are protected against discrimination by way of human rights legislation, which is separate from employment standards legislation, and varies between jurisdictions. Similarly, non-union employees in Québec, Nova Scotia and the federal sector cannot be dismissed without just cause where they have completed a number of years of service with the same employer. Maternity or pregnancy … During the 1960s and 1970s Canada's labour force grew more rapidly than that of any other industrial country and was accompanied by and dependent upon an unusually high rate of capital investment, particularly by American corporations. Higher standards are often customary in many industries in Canada, and lower standards are unenforceable. Employment contracts do not have to be in writing to be valid, and they can take the form of an offer letter, a formal contract or even a verbal agreement. It does so within the context of exploring the nature of employment and the key theoretical perspectives that inform the study of labour relations. ‘Enough is enough’: labour activists fed up with NS government Labour relations in Nova Scotia are at an all-time low according to the Federation of Labour. Except for the various tax and source deduction forms that need to be filled out by employees upon their hiring, no specific information must be provided in writing. However, where there is a collective agreement or where the employment relationship is subject to privacy legislation, such monitoring is not usually allowed, except where the employer can establish that the employee has no or a limited expectation of privacy in relation to the information being monitored. 2.4        Are employers required to set up works councils? If not, do employees have to be provided with specific information in writing? The procedures which an employer has to follow in relation to an employee’s dismissal depend on the contracts of employment and/or policies which govern the employment relationship. Specifically, it looks at contemporary issues in labour relations and examines union organization and structure, labour legislation, and how collective agreements are negotiated and administered. Typically, an employment-related complaint must be commenced by the official filing of a complaint by the employee with an administrative board or tribunal, or by the filing of a claim in front of the courts. ... across a whole range of issues … Non-union employees outside of the federal sector, Nova Scotia and Québec do not have a right to reinstatement in their employment even if their dismissal was wrongful or without cause. Regardless of the reason, termination of employment must be made in compliance with any applicable employment standards legislation, contract of employment or collective agreement. Labour relations have also been affected by the structure of the Canadian economy. Can employers settle claims before or after they are initiated? The Professional LLM in Labour Relations and Employment Law gives students the opportunity to gain a deeper understanding of the theory, policies and principles that underlie labour and employment law. Each of the above factors will be considered on a case-by-case basis, and the employer will have the burden to prove that the non-competition clause is drafted in a way which renders it enforceable. Labour and Employment law is a multi-faceted practice that pertains to all aspects of labour relations, human resources, and the employment relationship. Employment-related complaints of various natures can be heard by civil courts in most jurisdictions. In such a case, the employment relationship of non-union employees is deemed to be severed by the purchase, and there is no obligation on the purchaser to offer these employees employment. For 2017, maximum insurable earnings are $53,100. Employers can terminate employment for any lawful reason (i.e. Non-competition and non-solicitation clauses (prohibiting the solicitation of both co-workers and clients) are the main forms of restrictive covenants recognised in Canada. Some employment standards legislation also requires employers to develop written policies, such as with respect to workplace violence and harassment, for instance. In what circumstances is an employee treated as being dismissed? 6.3        What protection do employees have against dismissal? Alexandre Buswell The legislation recognizes provincial responsibility for labour market training and allows for federal-provincial partnerships to create new programs to assist in this regard. Health and safety authorities carry out inspections at construction sites, industrial plants and other hazardous sites to ensure compliance with the regulations. Undue hardship is a very high threshold to reach and is determined having regard to factors such as costs, operational requirements and health and safety concerns, amongst others. In addition, pre-employment checks such as criminal records checks, credit checks and driver’s licence checks may reveal information about protected grounds of discrimination, such as previous convictions unrelated to the position in Québec. In addition to economic changes, there has been significant change in the labour force. In addition, in all provinces, employment standards or human rights legislation prohibits discrimination based on gender for similar or substantially similar work. 1.3        Do contracts of employment have to be in writing? Canadian human rights legislation provides the same protections to employees regardless of the terms of their contracts. Generally, the maximum duration of a non-competition clause is two years. Depending on the jurisdiction and on whether or not a pregnancy or maternity leave was also taken, parental leave can be as much as between 34 and 63 weeks. 4.3        What rights does a woman have upon her return to work from maternity leave? Generally, however, employers will not have to give notice or severance pay to employees being dismissed for serious reason or wilful misconduct. LABOUR RELATIONS, EMPLOYMENT CONDITIONS AND PARTICIPATION IN THE HEALTH SECTOR Dr Pedro Brito Coordinator, Human Resources Development Program, PAHO/WHO, Washington DC Pedro Galin NOGAL, AC, Buenos Aires Lawyer, External consultant, PAHO Marta Novick Sociologist, CONICET Canada’s labour movement has a long history of improving workers’ everyday lives. The QPIP replaces benefits that Québec residents previously received under the Employment Insurance Act. Although not prohibited, garden leave is quite rare in Canada. A number of human rights tribunals and commissions across Canada also exercise broad remedial powers and can order various forms of non-monetary relief (sometimes including reinstatement) to successful claimants. The maximum number of hours worked in a day and week, Notice and severance entitlements in the event of termination of the employment relationship. Absent express agreement to that effect, the unilateral imposition of a garden leave could result in a constructive dismissal claim, which could in turn result in a much earlier termination date, on the first day of the garden leave. Ontario’s Bill 148, the … In some jurisdictions, employers also have to put in place a policy or code of conduct including protection for whistleblowers and in others, a recourse exists for employees who believe they have been disciplined, demoted or terminated because of whistleblowing which allows them to seek reinstatement. 2.5        In what circumstances will a works council have co-determination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals? Canada. entitlement that varies depending on the seniority of the employee. In certain circumstances, employees can be disciplined in relation to their unlawful use of social media. Again, as employment contracts in Québec are transferred to the purchaser in the context of an asset transfer, their terms and conditions will follow and continue to apply with the purchaser. Can an employer transfer employee data freely to other countries? 7.1        What types of restrictive covenants are recognised? 6.6        Are there any specific procedures that an employer has to follow in relation to individual dismissals? As an experienced Canadian Labour Relations consultant I can provide your organization with guidance and training in handling labour relations issues such as: Compliance with the Canadian labour and employment laws; Collective bargaining; Grievance arbitration and Labour arbitration; Mediation Any monitoring of employees’ personal information must also be conducted through the least intrusive means possible, and only for reasonable and legitimate business purposes in order to be valid. If so, what are the main rights and responsibilities of such bodies? Borden Ladner Gervais, The International Comparative Legal Guides and the International Business Reports are published by: Global Legal Group, Our work with GLG aimed to increase our firm`s visibility in aviation law practice. 8.4        Are employers entitled to monitor an employee’s emails, telephone calls or use of an employer’s computer system? Because of this, all employers who have employees working in Québec, regardless of the employees’ province or territory of residence, have to deduct a reduced EI premium using a reduced EI premium rate as well as QPIP premiums. However, the right to terminate the contract of employment in the absence of just cause by providing the appropriate notice of termination of payment in lieu is limited in certain jurisdictions (Québec, Nova Scotia and federal). In addition to the minimums set by statute, and absent a binding employment contract setting out termination entitlements, employers are generally required to provide reasonable notice under both common law and civil law, as applicable. Employment Termination The course is intended to explore specific aspects of labour relations in depth. Minimum notice periods for termination are set out in each jurisdiction’s employment standards legislation. Generally, employees can enforce their discrimination rights by filing a human rights complaint through their local human rights tribunal or commission. International Labour Organization, 2000: "ILO principles concerning the right to strike" (64 pages, PDF) Rose, J.B. (2008). Finally, as share purchases do not trigger a modification in the employment status of employees, unionised or not, the terms and conditions relating to employees’ employment remain the same. Canadian workers have the right to join trade unions, which may be certified to collectively bargain conditions of employment with their employers on their behalf. 3.5        How do employees enforce their discrimination rights? 5.1        On a business sale (either a share sale or asset transfer) do employees automatically transfer to the buyer? Such notice must typically indicate the number of employees being terminated, the date of their termination, and confirm that all other statutory requirement have been complied with. Any working notice or pay in lieu of notice provided to employees will only be valid once the appropriate government official has received a valid notice of mass termination. Employers pay premiums to provincial workers’ compensation boards at rates determined primarily on the basis of the type of industry, size of payroll and the employer’s claim record. In the event of dispute, courts may be called upon to determine how much notice an employee is entitled to receive. Courts will only enforce a non-competition clause if it: protects a legitimate proprietary interest of the employer; constitutes a reasonable restraint having regard to factors such as duration, geographic scope, and activities prohibited; is expressed in clear and certain terms; and is reasonable in terms of the public interest. Employment terminations cannot be directly or indirectly based on a prohibited ground of discrimination and cannot be used as reprisal following the exercise, by an employee, of a legal right under employment standards legislation, or any other employment-related legislation such as labour or occupational health and safety legislation (see section 3 and question 6.3). Employees also have the right to know the reasons for their dismissal where they are being dismissed for just cause. 5.3        Are there any information and consultation rights on a business sale? This remains the exception and will only be allowed by the courts in very special circumstances. 1.4        Are any terms implied into contracts of employment? As such, employees have an implied and legal duty of loyalty toward their employers, as well as a duty of good faith. Please refer to question 2.4. If an employee is terminated for cause, there is no obligation to provide advance notice to the employee or payment in lieu thereof. Discrimination claims may namely arise in situations surrounding hiring, promotions, conditions of employment and even discharge. Successful discrimination claims may result in compensation for any lost wages that resulted from an employer’s discrimination and/or failure to accommodate, where such loss of wages can be established. These lawful reasons can relate to the employee individually, or to legitimate business reasons. Specific rules also regulate when a union can be decertified or replaced with another union. Direct and indirect discrimination are prohibited under human rights legislation. The province of Québec differs in this respect in that it has no system of common law. iv / Labour Relations Laws in Canada and the United States 2014 Alberta, which received a score of 5.3, falls into a third category as it scored well ahead of other Canadian jurisdictions though it fell short of com-peting with US states. We fought for and won many of the rights enjoyed by all workers today – minimum wages, overtime pay, workplace safety standards, maternity and parental leave, vacation pay, and protection from discrimination and harassment. Research from a Poverty and Employment Precarity in Southern Ontario (PEPSO) project, which demonstrated the limitations of existing studies like Statistics Canada’s Labour … The Québec Civil Code, however, provides that employment contracts are automatically transferred to the purchaser in an asset transfer. The offer of employment is often based on the same or substantially similar terms, and the employees who accept the offer will carry over their accumulated service and seniority. 6.5        When will an employer be entitled to dismiss for: 1) reasons related to the individual employee; or 2) business related reasons? Already registered? Employees in Québec have access to another unique leave for birth or adoption, which includes up to five days of partially paid leave to be taken in the first 15 days after an employee’s child is born or adopted, or after the termination of a pregnancy that has reached at least the 20th week of pregnancy. Employers cannot adopt rules, policies, or practices relating to any aspect of the employment relationship that are directly or indirectly discriminatory based on one or more protected grounds. Canada’s system of collective bargaining is embodied in federal and provincial labour relations acts and labour codes. Outside of Québec, non-competition clauses will not be enforced where an employer’s interests could be adequately protected by a non-solicitation clause. 6.4        Are there any categories of employees who enjoy special protection against dismissal? The way drivers are classified can significantly impact the obligations and operations of a business, as independent contractors are excluded from most employment standards and labour relations legislation both federally and provincially, although dependent contractors can be captured for certain purposes. 6.7        What claims can an employee bring if he or she is dismissed? Does an employee have to pay a fee to submit a claim? Garden leave will only be valid where it is set out in writing between the parties. 8.2        Do employees have a right to obtain copies of any personal information that is held by their employer? There are three types of workers in Canada: employees; dependent contractors; and independent contractors, which are distinguished mainly based on their level of subordination to their superiors. "Regulating and Resolving Public Sector Disputes in Canada". The courts will award additional damages to employees where their employment has been terminated in bad faith. After the recession, faced with increased use of back-to-work legislation and harder-bargaining, labour, in its weakest … In most jurisdictions, non-unionised employees can be dismissed in connection with an asset transfer, as they do not have a right to new employment with the purchaser. To that intent, the Labour Program has developed numerous services, measures and initiatives to assist employers and employees in creating and maintaining a workplace … Employment Insurance (EI) is a federal initiative established and governed by the Employment Insurance Act. Both the federal and provincial governments provide mediation and conciliation services, which can be mandatory before employees may strike or employers may lock out employees in furtherance of their bargaining aims. will also continue when the shares are acquired. Generally, a union must demonstrate that it has the support of a majority of employees in a proposed bargaining unit in order to be certified. Labour leader Sir Keir Starmer, who fought to overturn the 2016 referendum, has ordered his MPs to vote for the deal. Social Issues in Canada. 3.6        What remedies are available to employees in successful discrimination claims? Similarly, where the sale concerns a unionised business, the purchaser is deemed to be a successor employer and becomes bound to the vendor’s collective agreement(s). 9.1        Which courts or tribunals have jurisdiction to hear employment-related complaints and what is their composition? We were delighted to see when the published Chapter in the ICLG resulted in new clients contacting our firm and engaging our services. Such preconditions include the attempt by the parties, in good faith, at collective bargaining, a support of the industrial action contemplated by a majority of the bargaining unit members, and the provision of advance notice of strike or picketing to the employer. In the rest of Canada, however, each employee will need to be offered a new contract or offer of employment with the purchaser, as their employment will be deemed terminated upon the conclusion of the sale for common law purposes. Typically, proceedings before administrative boards or tribunals may be finalised within 12 to 18 months, while court proceedings generally take up to a few years. Canada Slightly less than one third of all Canadian employees are members of unions. Collective agreements in force at the time of the sale therefore continue to govern all terms and conditions of employment, and bind the purchaser to the corresponding union. Personal information should only be collected and used for reasonable purposes. However, the federal government has jurisdiction over a number of industries such as banks, telecommunications, transport of merchandise and railways, as well as Aboriginal territories, amongst others. Workplace policies on social media should also include provisions on use outside of work. However, if the employee is approached with a restrictive covenant during the term of employment, additional consideration (which could take the form of financial compensation, but also of a promotion, for instance) must be given to the employee in exchange for the restrictive covenant. Safety and health issues can lead to labour relations strife, producing work stoppages. 4.4        Do fathers have the right to take paternity leave? 5.4        Can employees be dismissed in connection with a business sale? 4.6        Are employees entitled to work flexibly if they have responsibility for caring for dependants? Generally, where an employer has the burden to establish just cause for dismissal (in unionised workplaces or in the federal sector, in Québec and in Nova Scotia), it is expected to apply progressive discipline before proceeding with termination, in order to provide that employee with a reasonable chance to improve their behaviour and/or performance. Harmonious labour-management relations are beneficial to both the economic security of individuals and the economic prosperity of Canada. However, most employment standards statutes do provide for continuity of service for those employees who continue in employment with the purchaser. Each Canadian province or territory sets the minimum employment standards applicable to all employees within their jurisdiction. This website uses cookies. In some circumstances, employers who do not comply with their obligations in relation to mass termination may also receive fines. Canada This is an important consideration if the purchaser intends to reduce the workforce or transfer employees, as there may be restrictions imposed within the collective agreement. covers common issues in employment and labour laws and regulations – terms and conditions of employment, employee representation and industrial relations, discrimination, maternity and family leave rights and business sales – in 51 jurisdictions, > While parties to an employment agreement are entitled to contract out of the common/civil law notice period, they may only do so as long as the contract provides for at least the statutory minimum entitlements and is otherwise reasonable, valid and enforceable. Employers also have a number of implied duties, such as providing a work environment that is safe and secure, and providing reasonable notice of dismissal to their employees in case of termination without cause. Finally, human rights legislation is also implicitly included into collective agreements. Following an asset transfer, a purchaser is generally free to retain the vendor’s employees or not, and can therefore determine the terms and conditions of employment on which it is prepared to offer those employees employment. What are the remedies for a successful claim? 6.2        Can employers require employees to serve a period of “garden leave” during their notice period when the employee remains employed but does not have to attend for work? Is conciliation mandatory before a complaint can proceed? A restrictive covenant of shorter duration is therefore more likely to be enforced. As the legal identity of the employer is not modified by a share purchase, such a business sale does not trigger a change to the employment status, and any employment relationship with the vendor automatically continues with the purchaser. In Québec, the clause will most likely be enforced where it is reasonable, and drafted in accordance with the requirements of the Civil Code. It should be noted that, in some jurisdictions, employees are also entitled to a certificate or attestation of employment following their termination. In federal jurisdictions, the Federal Mediation and Conciliation Service handles conciliation, preventive mediation and arbitration matters. Some jurisdictions have adopted privacy legislation that applies to employment relationships. When a restrictive covenant forms part of an employee’s offer of employment, the offer of employment itself will generally constitute sufficient consideration. Requirements and rules relating to sexual harassment are usually comprised in general policies pertaining to psychological harassment and/or workplace violence, and depend on each jurisdiction’s employment standards legislation.