Bill 32: Restoring Balance in Alberta's Workplaces Act, 2020

Bill 32: Restoring Balance in Alberta's Workplaces Act, 2020

On July 7, 2020, the Government of Alberta introduced Bill 32 Restoring Balance in Alberta's Workplaces Act, 2020.  Bill 32 proposes a number of changes to the Employment Standards Code, the Labour Relations Code and certain other labour-related legislation applicable to police, schools, post-secondary institutions and the public sector.  The Bill includes significant changes that will impact unionized and non-unionized environments.  Below you will find a brief outline of the most noteworthy proposed changes. 

Employment Standards Code

Bill 32 proposes changes to certain employment standards that in many cases mark a return to the standards that existed prior to 2017.  Many changes also appear to address issues created by the 2017 amendments to the Employment Standards Code; issues which have created problems for workplaces across Alberta.  Among other changes, the following will have an impact on most:

  1. Deductions from Employee Wages - The ability for employers to make deductions from wages has been expanded to allow for the recovery of overpayments of earnings paid to an employee within a six (6) month period, as well as the recovery of vacation pay that was paid to an employee prior to their accruing an entitlement to that pay.  An employer must provide the employee with written notice prior to making these deductions but no longer needs the employee's permission to make these deductions.  For many employers, this will mean they will no longer need to initiate some sort of claim to seek reimbursement of money to which an employee has no legal right.
  2. Averaging Arrangement - The Government is proposing to replace the cumbersome 'Averaging Agreement' provisions regarding hours of work with a revised 'Averaging Arrangement' scheme.  These provisions would allow employers to require employees to work under an averaged work schedule if no collective agreement is in place instead of requiring that employers enter into agreements with employees.  This sort of schedule can be implemented by providing the employee with at least two (2) weeks' notice.  An employee's hours of work can be averaged over a period of 52 weeks (up from 12 weeks).  These provisions will provide employers with additional flexibility with respect to the management of hours of work, overtime liability, and the changing demands of a business.  Those with existing averaging agreements wishing to move to averaging arrangements will be able to do so by canceling the existing agreements on 30 days' notice or by allowing the existing agreement to lapse. 
  3. General Holiday Pay - General holiday pay would be calculated by averaging an employee's total wages during either the four (4) week period immediately preceding the general holiday or during the four (4) week period ending on the last day of the pay period immediately preceding the general holiday.  This means employers no longer need to calculate general holiday pay taking into account vacation pay and other general holiday pay paid in the four (4) week period, as is currently the case.
  4. Temporary Layoffs - Once the temporary layoff changes due to COVID expire (i.e., those allowing for a layoff of up to 180 days), an employee could be temporarily laid off for up to 90 days in a 120 day period.  This represents an increase from the current regime, which allows for layoffs of up to 60 days in a 120 day period.  This will provide employers with more flexibility as they relaunch their operations and as Alberta navigates the impact of possible future COVID outbreaks.  This change will also assist employers to maintain the employment relationship with their employees for a longer duration without having to formally terminate laid off employees who may be recalled shortly thereafter.
  5. Group Terminations - The notice required to proceed with a group termination will be reduced back to four (4) weeks for any termination of 50 or more employees in the same location within a four (4) week period, or where not possible, as soon as reasonable and practicable.  This represents a significant decrease from the existing group termination notice requirements.  Additionally, that notice no longer needs to be provided to employees and / or bargaining agents, and is exclusively provided to the Minister.  Finally, group termination notice will no longer supersede the minimum termination notice that must be provided based on years of service under the Employment Standards Code
  6. Rest Periods - The rest period language is returning to its prior form, meaning that employees must now work five (5) hours in order to qualify for a 30 minute rest period.  Employees who work in excess of 10 hours are entitled to two 30 minute breaks.  If no agreement is reached with respect to when a rest period is to be taken, an employer can choose when to provide the rest period(s) in accordance with the time frames prescribed by the legislation. 
  7. Calculation of Vacation - Bill 32 proposes to clarify that the time an employee spends on a job-protected leave is included toward calculating an employee's years of employment with respect to their vacation entitlement. 
  8. Payment of Earnings at Termination - An employer will be able to elect to pay the employee's earnings either 10 consecutive days after the end of the pay period in which the termination of employment occurs or 31 consecutive days after the employee's last day of employment.  This is more than the current rules which require that final pay be issued within either 3 or 10 days after the last day of employment depending on the circumstances. 

If passed as tabled, the vast majority of the provisions would come into effect on November 1, 2020.  Certain changes with respect to group terminations, layoffs, and variances will come into effect sooner, on August 15, 2020.

Labour Relations Code

Significant changes have been proposed that are designed to meet the Government's express goal of "reducing red tape" for businesses and addressing other commitments made by the Government.  The following are the most noteworthy:

  1. Union Dues - Transparency and Accountability
    • Trade unions are required to provide a financial statement to their members as soon as possible at the end of the union's fiscal year.  If a financial statement has not been provided or is inadequate, the Labour Relations Board (the "Board") has the ability to issue certain remedies.
    • Unions must now indicate the amount or percentage of the union dues that relate to political activities.  Unions must also disclose the amount or percentage of the union dues that directly relate to activities under the Labour Relations Code, including collective bargaining and member representation.
    • Union members are not required to pay and trade unions are not allowed to collect the amount of union dues that go toward political activities unless a union member elects to do so (i.e., an opt in system).   The trade union representing the employee in a unit must notify the employee's employer of the employee's election or revocation.  A trade union is not allowed to expel, suspend, or take disciplinary action against a union member who does not elect to pay.   A party may apply to the Board if a dispute arises under this section.
    • If a prohibited strike occurs, the Board can direct the employer to suspend the deduction and remittance of union dues for one (1) to six (6) months.  If a prohibited lockout occurs, the Board can direct the employer to pay union dues to the bargaining agent for one (1) to six (6) months from the start of the lockout.
  2. Board Powers - Changes have been proposed that expand the Board's powers.  There are expanded grounds upon which the Board can dismiss complaints at the preliminary stages.  In addition, the Board is also being given the ability to better address situations where prohibited practices resulted in a representational vote by employees in a proposed bargaining unit that did not reflect the true wishes of those employees.  The Board can refuse to grant a certification in such circumstances and order another vote take place or can order that the Union be certified if no other remedy would sufficiently address the prohibited practice.
  3. Reverse Onus - Currently, employers are subject to a reverse onus with respect to certain types of complaints brought to the Board.  This means that they are required to prove their defense to those complaints prior to a union putting forward its case.  This reverse onus, which was put into place in 2017 by the prior Government, has been limited in scope to only applying to allegations in certain cases involving dismissals or discharges. 
  4. Arbitrator Powers - The 2017 amendments that gave arbitrators the power to relieve against collective agreement timelines will be removed.  This reverts to the former law where arbitrators had no such ability and mandatory time limits can be strictly relied upon.  Additionally, arbitrators are now required to make decisions in accordance with the provisions of the Labour Relations Code, and no longer with regard to general Canadian principles of arbitration.  This last change will presumably mean that arbitrators will take a much more 'Alberta-centric' approach to adjudicating disputes rather than applying principles from other provinces that developed in completely different contexts. 
  5. Review of Arbitration Awards - With respect to the review of arbitration awards, there is no longer a legislated standard that the Board will use to review those awards.  They will instead be bound by the common law rules for assessing that standard.  Additionally, the Board is given the express ability to order costs against a party for bringing a review forward which will likely dissuade parties from advancing frivolous review applications.
  6. Picketing - Significant changes have been proposed to the manner in which picketing operates during a strike.  Notably, obstructing or impeding a person who wishes to cross a picket line from crossing the picket line is now considered to be a wrongful act.  This means that picketers will no longer be allowed to stop individuals and vehicles from entering employer premises if they choose not to stop, as is currently the case in many strikes.  Furthermore, a person or a trade union is not permitted to picket at a secondary work site without an order of the Board.
  7. Certification and Revocation Applications - All timelines put in in place by the 2017 amendments are to be removed with the final decision to be made by the Board within six (6) months.  This greatly expands the amount of time within which these applications can take place, giving parties more time to properly consider and adjudicate issues that often arise in the certification and revocation contexts. 
  8. First Contract Arbitration - The Bill proposes to limit the circumstances under which parties can compel first contract arbitration by adding new criteria to when such an order can be granted by the Board.  This change will help promote free collective bargaining and reinforces the fact that first contract arbitration ought to be a last resort. 
  9. Post-Secondary Interest Arbitrations - Currently, there are some academic staff collective agreements in the province that provide for binding arbitration to resolve disputes in bargaining.  Bill 32 proposes to render that language in agreements void.  Like the changes to the first contract arbitration regime, this will promote free collective bargaining. 
  10. Construction Industry - Several changes will significantly impact the construction industry: 
    • A few years ago, the Board ruled out the practice of entering into an overlapping collective agreement in order to close off a raiding period for a competing union.  That decision reversed prior jurisprudence.  Proposed changes will permit renewals of agreements that overlap open periods provided that the employees voted for the new agreement with full knowledge that this would prevent a competing union from applying for certification.   
    • Under the current law, if a union successfully raids a bargaining unit, it can terminate the collective agreement which is in place on two months' notice.  The proposed change would make that provision inapplicable in the construction industry.  
    • The Building Trade Unions have frequently attempted to fine members who work either for non-union companies or for companies represented by other trade unions (such as CLAC).  The Board had ruled that they could proceed with fines even though the member was working in a position that was not available to him through the union.  The proposed changes will clarify that discipline including fines cannot be imposed unless the member gained alternative work which is truly comparable in terms of functions, duration, pay and industry.  
    • The Building Trade Unions have always been organized on a trade by trade basis so their bargaining has been conducted on that basis.   Board decisions had ruled that CLAC and other alternative unions had to follow the same bargaining units and had to obtain certifications on a trade by trade basis.  The proposed changes will follow the lead of B.C. and Saskatchewan and permit unions to apply for multi-trade bargaining units for both construction and maintenance.  The exception will be if there is proven to be a "substantial and imminent change in the composition of the bargaining unit" so that it is an unrepresentative group. (i.e. the build-up principle will apply when the application is for a multi-trade bargaining unit).  This change will also allow consolidation of existing bargaining units into one. 
    • These provisions will facilitate project agreements on construction projects to be negotiated by the Building Trades of Alberta as an entity apart from its constituent member unions.  These agreements will be permitted for the duration of projects and  will operate outside of the registration scheme.  
    • These changes will give to the Minister, instead of the provincial Cabinet, the power to approve Division 8 project agreements applicable to major construction projects and impose a 120 day timeline for approval.  The major advantage of these project agreements is that they prevent any strikes during the term of the project including any alteration or additions to the project.  The amendments will clarify that the owner can serve as principal contractor; they will allow more than one project agreement per project; they will permit delegation of bargaining authority from the project owner in whole or in part; and they will require arbitration to resolve collective bargaining disputes if the parties cannot initially agree or if they cannot agree on terms at the time of renegotiations.  They will also permit the inclusion of maintenance work in the project agreement coverage.     

Other Legislation

In addition to the above, Bill 32 also introduces amendments to a number of other labour-related enactments.  Notably, it introduces the opt-in provisions regarding the payment of dues for political or other activities to those employees who are governed by the Police Officers Collective Bargaining Act, the Public Education Collective Bargaining Act, and the Public Service Employee Relations Act.

The obligation that unions provide financial statements have also been incorporated into the Police Officers Collective Bargaining Act and the Public Service Employee Relations Act.

The information in this update is intended as general information and should not relied on as legal advice.