On May 2, 2024, Bill C-69, An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024 (“Bill C-69”) was tabled for First Reading in the House of Commons. Bill C-69 contains a number of proposed legislative amendments which are intended to implement various aspects of the federal government’s Budget 2024. Notably for federally-regulated employers in industries like telecommunications and transportation, Bill C-69 proposes several important changes to the Canada Labour Code (the “Code”).
Establishing a Policy on Disconnecting
In Budget 2024, the government indicated its intention to propose amendments to the Code that would require employers to establish a “right to disconnect” in order to limit their employees’ work-related communications outside of regular working hours.
As tabled, Bill C-69 would amend Part III (Standard Hours, Wages, Vacations and Holidays) of the Code to set out certain requirements for employers related to the establishment of policies respecting work-related communication. More specifically, Bill C-69 would require that, within one year of becoming subject to the proposed amendments, an employer bring into effect a policy containing the following elements:
- A general rule respecting work-related communication outside of scheduled hours of work, including the employer’s expectations and any opportunity for employees to disconnect from means of communication,
- Any exceptions to the rule and their underlying rationale,
- The effective date of the policy, and
- Any other elements that may be prescribed by regulation.
Pursuant to the proposed amendments, certain employees would be permitted to be excluded from the application of the policy – i.e., employees who are managers or superintendents or exercise management functions, employees who are members of professions to which Division I of the Code does not apply, employees exempt from the Code’s provisions on standard hours of work (section 169), employees exempt from the Code’s provisions on maximum hours of work (section 171), and employees exempt from the Code’s provisions on overtime pay or time off (section 174).
Furthermore, for unionized employees, if the parties to a collective agreement agree in writing that the agreement meets the specified policy requirements with respect to some or all of the employees subject to the agreement, the proposed amendments pertaining to the policy on disconnecting would not apply vis-à-vis those employees.
Along with detailing specific policy requirements and possible exclusions, the proposed amendments would require that:
- In respect of unrepresented employees, the employer consult with employees (other than excluded employees) in the development and updating of the policy, as well as provide them with at least 90 days to provide their comments,
- In respect of unionized employees, the employer consult with the trade union in the development and updating of the policy,
- The employer keep a record of information related to the consultation of employees and to the development and updating of the policy,
- On or before the effective date of the policy, the employer post and keep posted a copy of the policy in readily accessible places where it would be likely to be seen by subject employees,
- Within 30 days of the day on which the policy becomes applicable to an employee, the employer provide that employee with a copy of the policy in either paper or electronic format (or by another method of communication such as braille, large print or audio communication, where so required by the employee), and
- The policy be updated on or before the third anniversary of the effective date of the previous version.
Finally, the proposed amendments would also authorize the Governor in Council to make regulations prescribing the form of the policy, any other elements to be included in the policy, and the manner in which the policy is required to be posted.
Clarifying Certain Employer Obligations and Employee Rights Related to Terminations
As currently drafted, Bill C-69 would also amend the Code to clarify certain employer obligations and employee rights related to terminations of employment. In particular, it would add new provisions to Part III (Standard Hours, Wages, Vacations and Holidays) of the Code indicating the following:
- That the employer’s obligation to give and the employee’s right to receive notice or wages in lieu under subsection 230(1) apply whether or not the employee has a right to avail themselves of any procedure for redress under Part III, including the right to make a complaint of unjust dismissal under subsection 240(1), with respect to the termination of their employment, and
- That the employer’s obligation to pay and the employee’s right to receive severance pay under subsection 235(1) apply whether or not the employee has a right to avail themselves of any procedure for redress under Part III, including the right to make a complaint of unjust dismissal under subsection 240(1), with respect to the termination of their employment.
Strengthening Prohibitions Against Employee Misclassifications
In Budget 2024, the government also indicated its intention to propose amendments to the Code that would strengthen prohibitions against employee misclassification.
As tabled, Bill C-69 would amend Parts I to III of the Code to, amongst other things:
- Create a statutory presumption that a person who is paid remuneration by an employer is their employee unless the contrary can be proven by the employer,
- Establish a requirement in the context of any proceeding other than a prosecution that if an employer alleges that an individual is not their employee, the employer bears the burden of proof of so proving, and
- Prohibit an employer from treating an employee as if they were not their employee.
Of note, under Parts I to III of the Code, the proposed presumption would not apply for the purposes of a prosecution. Moreover, under Part I (Industrial Relations) only, the proposed presumption would specify that the presumption applies “other than to a person who performs management functions or is employed in a confidential capacity in matters related to industrial relations”.
In addition, the proposed prohibition against treating an employee as if they were not an employee would be accompanied by a new right under Part I (Industrial Relations) of the Code to make a complaint in writing to the Canada Industrial Relations Board (the “CIRB”) in the event of any contravention or failure to comply with the prohibition. If such a complaint were to be founded, the CIRB would also be authorized to issue an order requiring the employer to comply with or cease contravening the prohibition, or requiring the employer to pay to any employee affected by the contravention compensation not exceeding a sum equivalent to the remuneration that would have been paid to that employee, but for the contravention.
Likewise, the proposed prohibition against treating an employee as if they were not an employee would be accompanied by a new right under Part II (Occupational Health and Safety) of the Code to make a complaint in writing to the Head of Compliance and Enforcement (the “Head”) in the event of a contravention of the prohibition, as long as the complaint is brought no later than six (6) months after the day on which the complainant knew, or ought to have known, of the action or circumstances giving rise to the complaint. Where such a complaint is properly made, the Head would subsequently be required to investigate the complaint.
Finally, under Part III (Standard Hours, Wages, Vacations and Holidays) of the Code, the proposed burden of proof imposed on an employer would not only not apply in the context of any proceeding under that part other than a prosecution, but also in any proceeding under Part IV (Administrative Monetary Penalties) in respect of a violation related to Part III.
IN OUR VIEW
Besides the above-noted amendments to the Code, Budget 2024 also proposed other important legislative changes that would impact federally-regulated employers including, for example, changes to the Employment Equity Act. These proposed changes were not included in Bill C-69 but may be included in other bills to be tabled in the future.
We will continue to monitor the progress of Bill C-69 and of any other budget-related bills through the legislature and will report on important developments in that regard, if and when they occur.
For more information, please contact Steven Williams at (613) 697-6869 or Lauren Jamieson at (613) 404-5058.
