Glenn Tait, Partner
On August 23, 2007 the Government of the Northwest Territories passed a new Employment Standards Act (the Act). This legislation replaces the Labour Standards Act, the Wage Recovery Act and the Employment Agencies Act.
Although it has been passed, the new Act will not be in force until April 1, 2008. This allowed the Government time to create the regulations necessary to support the Act.
There are a number of changes introduced in the new Act. While some of the changes are positive for employers, there are a number of changes that could negatively impact employers.
Below is a comparison of the major changes between the new Employment Standards Act and the existing Labour Standards Act which would be of interest to employers. Many of the operating provisions of the Act will be in the Regulations, which have not been brought forward. Because of this, there may be additional changes that could reveal themselves when the Regulations are introduced.
The Act allows an employer and an employee, or group of employees, to enter into overtime agreements, where time off is provided in lieu of overtime. There was no provision for time off in lieu of overtime in the Labour Standards Act.
An overtime agreement must provide that each hour of overtime will provide an employee with 1.5 hours of time off with pay. Time off with pay generally has to be taken within 3 months of being earned, and has to be taken at a time when the employee would normally have worked. Time off with pay has to be paid at the employee’s regular rate of pay.
This change is a positive one. Many employers had informal arrangements with employees to take time off in lieu of overtime, but the employer was at risk of having that arrangement challenged. Now employers and employees can formalize these arrangements.
The Act provides that an employee can be required to work overtime, for a total time worked of up to ten hours in a day and sixty hours in a week. There is no comparable provision in the Labour Standards Act.
This provision eliminates arguments about whether an employee can be required to work overtime by an employer.
Days of Rest
The Act provides that an employee must have at least:
- one day of rest in each week;
- two consecutive days of rest in each period of two consecutive work weeks; or
- three consecutive days of rest in each period of three consecutive work weeks.
The Labour Standards Act provided that unless there was an exemption, there had to be one day of rest a week, and that Sunday should, where practical, be that day of rest. This change recognizes the reality of flexible work weeks.
The Act provides for direct deposit payments. There was no such provision in the Labour Standards Act.
The Act requires employers to provide detailed pay statements to employees when wages are paid. An employee can request details of wage calculations, bonus calculations and living allowance calculations. An employer can provide an employee with an electronic copy of the employee’s pay statement, as long as the pay statement is secure and can be viewed privately by the employee.
There were no provisions for pay statements in the Labour Standards Act.
It is important for employers, particularly those whose head office or payroll office may not be in the Northwest Territories, to remember that without an exemption order from the Labour Standards Officer, the employer needs to retain employment records at its main place of business in the Northwest Territories.
Mandatory Sick Leave
The Act requires employers to provide at least five sick leave days without pay over each 12 month period. Sick leave is available for all employees who have been employed for at least 30 days.
If a period of sick leave exceeds three days, the employer may require the employee to provide a medical certificate.
Sick leave was not addressed in the Labour Standards Act.
By setting five days as a minimum, employers can expect that at least some employees will feel entitled to those five days, regardless of whether or not they are truly ill, and regardless of the inconvenience that provides to the employer. The Act’s language concerning a sick leave certificate may be interpreted to mean that if a period of illness is not three days long, an employer is not entitled to request a medical certificate, no matter how suspicious the employee’s claim of sick leave might be.
Mandatory Compassionate Leave
The Act follows the lead of many other jurisdictions by providing 8 weeks of compassionate care leave without pay to provide care or support to a “family member” who is suffering from a serious medical condition with a significant risk of death within 26 weeks. Compassionate care leave can be taken in separate periods, but each period must be at least one week long.
Family member is defined as an employee’s:
- child or child of the employee’s spouse;
- parent or parent of the employee’s spouse;
- any other person that the federal government determines should be included, and who is included in either the Employment Insurance Act or the Canada Labour Code; or
- any other person designated by the Regulations.
There is no limit on the number of times an employee can take compassionate care leave. There is no requirement for a specified amount of advance notice to an employer, only that the request for leave must be requested by the employee.
Compassionate care leave was not addressed in the Labour Standards Act.
By allowing the federal government to determine who will be included within the class of family members, the Northwest Territories legislature has abdicated its legislative authority in this area.
Mandatory Bereavement Leave
The Act provides that an employee is entitled to bereavement leave without pay to attend a funeral or memorial service of a “family member.”
The period of bereavement leave is:
- three days if the funeral or memorial service takes place in the community where the employee resides; and
- seven days in all other cases.
There is no limit on the number of times an employee can take bereavement leave.
By setting the amount of bereavement leave at three and seven days, an employer can expect that certain employees will avail themselves of that much leave regardless of the amount of grief that they are suffering.
Bereavement leave was not addressed in the Labour Standards Act.
Mandatory Court Leave
The Act provides that an employee is entitled to court leave without pay to serve on a jury, including jury selection, and to attend a legal proceeding as a witness when served with a summons.
If the employer requests, the employee must reimburse the employer for jury or witness fees that the employee receives, less amounts provided for travel, meals and accommodations.
There is no limit on the amount of court leave that an employee can take.
Court leave was not addressed in the Labour Standards Act.
By requiring an employer to grant this leave, in unlimited amounts, employers can expect that there will be at least some employees who will take this leave when in other circumstances employees may seek to be excused from jury duty.
The Act gives the Employment Standards Officer the power to declare that an employer has terminated the employment of an employee if the employer has “substantially altered” a condition of the employee’s employment, with a view to discouraging the employee from continuing in employment.
There was no constructive termination provision in the Labour Standards Act.
The challenge for an employer, in any case where an employee’s terms of employment are changed, will be to prove to the Officer that the change was not done to discourage the employee for working for the employer. Employers can change terms of employment by providing employees with advance notice of that change. The Act does not appear to contemplate that possibility.
Employment of Employees 16 Years Old and Younger
The Act specifies the circumstances in which youth 16 and younger can be employed. The Labour Standards Act had similar regulations which applied to those who were 17 and younger.
Seventeen year old employees will now not be subject to any special employment restrictions.
The Act provides for an Employment Standards Officer. Under the Labour Standards Act this official was the Labour Standards Officer.
Appeals from the Labour Standards Officer now go to the Labour Standards Board. Under the Act, appeals will go to a single Adjudicator.
This is a summary of some of the more significant changes that would come about by the passage of the Employment Standards Act. For further information, please contact Glenn Tait at email@example.com.