An Employer’s Guide to Bill 32
The Alberta Government’s new Bill 32: Restoring Balance in Alberta’s Workplace Act proposes significant changes to both employment standards and labour relation laws in the province. The Bill was introduced on July 7, 2020 with the intention of providing clearer and more transparent rules, and reducing red tape for employers bringing employees back to work. It contains noteworthy changes to laws on termination and layoff restrictions, payroll deductions and pay calculations, youth employment, union dues and disclosure requirements, and strikes, lockouts and picketing.
As an employer, it is important to be mindful of these changes as, if passed, they will have a significant impact on your workplace. In an effort to prepare you for the proposed changes, we briefly highlight some key areas that will be affected.
Changes to Employment Standards
Hours of work: An hours of work averaging agreement (HWAA) allows employers to average an employee’s hours of work over a period of one to 12 weeks for the purpose of determining the employee’s entitlement to overtime pay or, instead of overtime pay, time off with pay. Under the proposed changes, an employer will be able to change or start an HWAA without an employee’s consent, provided they give the employee 2 weeks’ notice. The averaging period for an HWAA will increase from 12 to 52 weeks with the ability to request a further extension. With this change, an employer will still be required to ensure an employee receives 8 hours rest between shifts.
Additional changes include, an HWAA no longer requiring an end date, and more flexibility to employers to determine how and if daily overtime applies. Employers will not have to provide daily overtime, unless it is included as part of the HWAA. When included, daily overtime will be calculated based on the greater of weekly or daily overtime hours. A weekly overtime threshold will still apply regardless of whether daily overtime is included in the arrangement. Overtime must be paid out to the employee no later than 10 days after the pay period that the averaging period ends (which may be as long as 52 weeks).
Final pay upon termination: The Bill proposes extending the deadline for termination payments from the current obligation that an employer must pay a terminated employee no later than 3 or 10 days after the last day of employment depending on whether notice was required. The changes will no longer differentiate between termination of employment by employer or employee, or whether termination notice or pay was required. Instead, employers would be required to pay an employee within either, 10 consecutive days after the end of the pay period in which termination occurred, or 31 consecutive days after the last day of employment. The choice will be up to the employer and can be made based on what would better align with their respective pay cycles.
Employer deductions: Employers will be allowed to correct payroll errors and recover vacation pay paid in advance without an employee’s written authorization to deduct the amount from their paycheck. Employers will still be required to notify employees prior to any other deduction.
Holiday pay & wage calculations: While employees are still entitled to general holiday pay, employers will no longer have to include vacation pay and general holiday pay in the average daily wage calculation. The employer can choose between two options on how an employee’s average daily wage is calculated, depending on which calculation period best aligns with their respective payroll cycle. The calculation can either be the total wages averaged over the number of days they work in (a) the four weeks immediately before the general holiday, or (b) the four weeks ending on the last day of the pay period that occurred just before the general holiday.
Layoffs: Employers will be able to lay off employees for a longer period of time, increasing the time from 60 to 90 days within a 120 day period. Note that COVID-19 related layoffs are a separate issue and will continue to be up to 180 consecutive days.
Rest periods: Employers will be required to provide at least 30 minutes of rest every 5 hours for shifts that are longer than 5 hours. The rest period can be within or immediately after the 5 hours of work, or at any time mutually agreed upon by the employer and employee.
Group Termination Rules: There will no longer be different rules for terminations depending on the number of staff being terminated. The Bill proposes one set of rules for all terminations of 50 or more employees in a four-week period. Employers will still be required to give the Minister 4 weeks’ notice, or as much time as is reasonable when they terminate more than 50 employees at a single location.
Youth in the Workplace: The list of jobs available to youth aged 13-14 years old will expand to include positions in the restaurant industry, light janitorial work, coaching and tutoring and will no longer require a permit, provided the youth workers are working with someone at least 18 years old.
Penalties: The Bill proposes a reduction on a case-by-case basis for administrative penalties imposed on employers that contravene employment standards and will give the employer more time to make the payment. It will also make it easier for employers to get approval for a variance or exemption to an employment standard.
Changes to Labour Relations
Alter Employment Standards Rules: Under an HWAA, employers and unions will be able to agree to alter employment standard rules for hours of work, notice of work times, days of rest, and overtime hours.
Certification & Revocation Timelines: Specific timelines for union certification and revocation processes will be removed and replaced with a more general rule that applications should be processed as soon as possible, no later than 6 months after the date of application. The legislation will also specify when remedial certification can be used, as in instances when no other remedy is sufficient to counteract the impacts of the employer’s misconduct and the true wishes of employees can’t be determined.
Collective Agreements: Employers and unions will be able to renew a collective agreement before it expires if employees give their informed consent. And, if employees choose a new union, the existing collective agreement would still apply until it expires.
Opt-in Portion of Union Dues: The proposed changes mandate greater transparency for union spending and give employees the ability to opt-in to pay the portion of union dues that may go towards funding political parties and causes.
Complaints: When a complaint is made against an employer about an employee being unfairly terminated, the employer will be responsible for proving they did nothing wrong. The same responsibility will be placed on unions in cases of alleged coercion or intimidation.
Strikes, Lockouts and Picketing: The proposed changes will require the immediate filing of a Labour Relations Board’s order on a strike, lockout or picketing, at the request of one of the parties. During an illegal strike the Board may order employers to suspend union dues. During an illegal lockout, they may also order employers to continue to pay employees’ union dues.
Additionally, there are stricter rules proposed for picketing. Picketing would be deemed wrongful when it obstructs or impedes a person from crossing a picket line. Unions would also be required to get approval from the Labour Relations Board before picketing somewhere other than the employer’s business.
Construction Sector Changes: The Bill introduces more flexible rules for construction unions to organize their members, in an effort to help reduce employers’ administrative work associated with unionized employees. Industrial unions will be able to form “all employee units” by representing all employees who work for the same employer, regardless of their trade. This change will not affect building trade unions who will continue to certify their members on a craft-by-craft basis and international unions who will still follow existing rules in provincial collective agreements.
The changes detailed above are only a highlight of the total changes proposed under Bill 32 and do not represent a comprehensive list. The team at Walsh LLP is experienced in all these matters and together we can help ensure your business practices are aligned with the new changes if or when they are approved.
If you have any questions, please do not hesitate to contact Walsh LLP and speak to one of the members of our employment law team.