By Danica McLellan
On Monday, October 28, 2019, the Alberta Government introduced Bill 21, the Ensuring Fiscal Sustainability Act, 2019. This Bill proposes to make changes to a variety of existing legislation, as well as enacts the new Public Sectors Employers Act. While not all the provisions in Bill 21 relate to employment and labour relations, there are a number of significant changes that employers, and particularly public sector employers, should be aware of. Upon approval from the Alberta legislature, the definition of "employee" is changing, unionized employees will no longer be able to make complaints to Employment Standards, the ban on replacement workers for essential services will be overturned, termination pay for many public service employees will be capped, budget officers, systems analysts and auditors will once again be exempted from bargaining units in the public service, and many public sector employers will soon be issued with directives concerning collective bargaining. A brief summary of the substantive labour-related changes is contained below. Employment Standards Code 1. The definition of "employee" is amended. 1(1)(k) "Employee" means an individual employed to do work who receives or is entitled to wages and includes a former employee, but does not include an individual who is a member of a class of individuals excluded by the regulations. Currently, a number of classes of employees are exempt from various provisions of the Code by virtue of the Regulation. This change gives the government new flexibility to exempt certain classes of individuals from the Code in its entirety. This may refer to previously announced upcoming changes to farm work rules. Other, unexpected, changes may also be made exempting individuals in other industries from the Code. 2. Unionized employees can no longer make Employment Standards complaints. Unionized employees will be required to file complaints through the grievance process outlined in their Collective Agreements. This now enshrines in legislation that officers do not have the ability to accept complaints from unionized employees. 1. The ban on replacement workers in essential services is lifted. Employers with essential services workers may now opt-in to a replacement worker regime. (see Section 95.201). Within a "reasonable" time after the parties are required to begin negotiations for an essential services agreement, the employer must make an election to use the services of either designated essential services workers or replacement workers to perform essential services during a strike or lockout. The employer must notify the bargaining agent in writing of their election. If electing to use the services of designated essential services workers, the employer must begin negotiations for an essential services agreement. If electing to use the services of replacement workers, the employer must apply to the Commissioner for an order. An employer may change their election only if the Commissioner has not yet granted an order. An employer is not required to make an election if the employees in the bargaining unit do not perform essential services, or if the employer intends to maintain essential services during a strike or lockout by using the services of other "capable and qualified persons who are neither members of the bargaining unit nor replacement workers". 1. Termination pay is capped for public service employees who are not members of a bargaining unit under PSERA and whose employment contracts do not specify the notice of termination, severance payments, or combination thereof to which the employee is entitled on termination of employment. Notwithstanding any right existing at common law, an employee who is terminated without cause is entitled to a period of notice of termination no greater than 2 weeks where the employee has less than one year of continuous service, or 4 weeks for every full year of continuous service up to a maximum of 78 weeks. Severance pay may be provided in lieu of notice of termination with the approval of the Commissioner and the Deputy Attorney General (or their delegate). Severance pay is to be provided in the amount determined by the following formula: 1.16 x base salary (weekly) x number of weeks 2. If an employee receiving severance pay becomes employed with either the Crown in right of Alberta or a public agency to which the Alberta Public Agencies Governance Act applies during the period of notice, the employee shall repay the portion of the severance pay remaining from the first day of employment to the end of the period of notice. Public Service Employee Relations Act 1. Budget officers, systems analysts and auditors have been re-exempted from inclusion in a bargaining unit or any other unit for collective bargaining. This exemption had recently been removed by the previous government. Bill 21 has allowed for the possibility that this exemption applies retroactively as of a date to be prescribed in the regulations. Public Sector Employers Act This is a new Act that will require publicly funded post-secondary institutions, other than independent academic institutions; most school boards; regional health authorities; and various other entities (including the AGLC, Alberta Innovates, Alberta Pensions Services Corporation, ATB Financial, Covenant Health, Lamont Health Care Centre, Travel Alberta and the Workers' Compensation Board) to fulfill new responsibilities with respect to collective bargaining. The Minister may issue directives that employers must follow before, during and after engaging in collective bargaining or a related process. These directives may cover: - The terms of a collective agreement an employer may propose or agree to
- Fiscal limits the employer must operate within when engaging in collective bargaining or a related process
- Information an employer must provide to the Minister, including information respecting compensation data, employment and labour market data, information for the purpose of monitoring compliance with directives, and any other information the Minister considers necessary respecting collective bargaining or a related process
- Steps to be taken by an employer for the purpose of confirming compliance with directives.
Any directive issued by the Minister under this Act is confidential and may not be disclosed by the employer to any third party without prior consent of the Minister. Information provided to the Minister by an employer pursuant to a directive is confidential and may only be disclosed to another employer, an employee of a department or a member of Executive Council as the Minister considers necessary for the administration of the Act. The Lieutenant Governor in Council may by regulation amend the Schedule and prescribe additional entities to be covered by the Act, so long as the entities are a public agency to which the Alberta Public Agencies Governance Act applies, or are an entity that receives funding from the Crown to provide a public service.
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