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It’s time to bring Alberta’s Employment Standards Code into the Canadian mainstream…and beyond

Alberta’s basic floor of workplace rights is full of holes.

The rules haven’t been updated since the 80s.

Inspections are rare.

Prosecutions are almost non-existent.

There are no real consequences for rule breakers.

We’re far behind other provinces.

Albertans deserve better.

What is the Employment Standards Code?

The Employment Standards Code is the piece of legislation that provides the basic floor of workplace rights for the 75 percent of working Albertans who are not covered by union-negotiated collective agreements.

The Employment Standards Code sets out the rules regarding a wide range of work-related issues: everything from the minimum wage and hours of work; to vacation entitlements and overtime; to terminations and severance; and from rules regarding child labour to provisions that allow employees to take leave from work.

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When was the Employment Standards Code last updated?

Alberta’s current Employment Standards Code dates back to the 1980s; a time when Brian Mulroney was Canada’s Prime Minister, Ronald Reagan was president in the United States and Margaret Thatcher was in charge in Britain.

Since that time, the Canadian labour market has been dramatically transformed by trade agreements, the introduction of new technologies, the rise of more precarious forms of work and a dramatic increase in wealth and income inequality.

Albertans need workplace rules that address the challenges of today’s economy, not an economy that no longer exists.

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What’s wrong with having a 30-year-old Employment Standards Code?

One of the biggest problems with having a 30-year-old Employment Standards Code is that it was written before the emergence of current trends towards precarious work (defined as work that is part-time, temporary or in companies with non-traditional business models, like Uber).

A law can’t protect people against risks that didn’t exist or were not apparent when it was written.

Another problem with having a 30-year-old Employment Standards Code is that it is a product of its time – and times have changed.

Specifically, the Code was written at a time when industry self-regulation was the political flavor-of-the-day. The result is the Code says little about enforcement and provides few meaningful penalties for employers who break the rules.

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How does Alberta’s Employment Standards Code compare to similar legislation in other provinces?

Alberta is out of step with the rest of Canada on enforcement (we almost NEVER prosecute employers for violations of the Employment Standards Code).

We’re out of step on leaves (we have no rules protecting a person’s job if they need to a few days off for bereavement or to attend to a critically ill child).

We’re out of step on hours of work (our standard workweek is 44 hours; it’s 40 hours in most other provinces).

We’re out of step on vacations (we offer less); on scheduling (we offer fewer guarantees and protections); and on child labour (we let kids as young as 12 work in a much wider range of jobs than other provinces).

We’re also one of the minority of provinces that lets employers fire people without having to provide any reason (just cause); and, unlike other provinces, our Code is riddled with exemptions that allow certain employers (and in some cases, entire sectors) to avoid coverage under the rules.

The list of examples of how Alberta has diverged from other provinces on labour and employment laws goes on and on.

There is simply no justification for continuing to deny Albertans the kind of basic rights and protections in the workplace enjoyed by most other Canadians.

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Why should Albertans care about the Employment Standards Code?

Albertans should care about the Employment Standards Code because most of us are workers. In fact, Albertans have the highest workplace participation rate in the country.

If we’re going to spend so much time at work, we deserve to have our rights properly respected and protected while we’re there.

We should also care because the Employment Standards Code is supposed to provide a floor of rights for all workers…but the floor is full of holes.

The Code is filled with provisions that favour employers at the expense of employees. It is also riddled with exemptions for employers. And it’s designed in a way that discourages complaints and reduces employer accountability. These are all things that need to change.

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What’s the biggest problem with the current Employment Standards Code?

Issue #1: Enforcement

It’s hard to believe, but Alberta’s current Employment Standards Code contains almost no meaningful mechanisms for enforcement.

It’s a complaint-driven system, meaning that employers are only investigated if workers file a formal complaint. Random spot-check inspections are almost never conducted.

This is a problem because many workers don’t know their rights. And, even if they do, they’re often reluctant to complain for fear of retaliation by their employer.

The problem is compounded by the fact that the only way the government can punish an employer for breaking the rules is to launch a full-blown court case against them.

These kinds of cases are very expensive and time consuming. The result is that the government rarely decides to go to court and employers are almost never prosecuted.

In fact, in the past ten years, only three employers in Alberta have been prosecuted for violating the Employment Standards Code; even though there are 2.3 million workers and 150,000 workplaces in Alberta and the Labour Department receives more than 5,000 complaints each year.

To put it another way, in a typical year, the number of prosecutions launched by the Department of Labour against employers who have broken the rules is effectively ZERO.

Aside from formal prosecutions (which almost never happen) the only thing the Labour Department can do when dealing with an employer who has broken the rules is go after them in small claims court for wages owed to workers.

Even in these cases, the department often “bargains down” the amount owed to the worker and lets the employer off with a warning.

To add insult to injury, a worker filing a complaint has to wait an average of six months for this meagre service.

No wonder so many workers simply chose to walk away from their complaints, or not even call the Labour Department in the first place.

The obvious question is this: what’s the point of having rules if there is no real consequence for breaking them?

Solutions:

  • The Alberta government should follow the example of other provinces by introducing tickets and administrative fines for employers who violate the Employment Standards Code.
  • Inspectors should be given the ability to issue tickets on the spot, similar to the way speeding tickets are issued. The fines should be progressive: starting small for first-time violators and becoming larger for repeat offenders.
  • The Code should also be amended to ensure more unannounced inspections and to allow third parties (like parents, relatives, unions or worker help organizations) to make complaints about employer misconduct.
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What are some of the other big problems with the Employment Standards Code?

Issue #2: Exemptions and “Director’s Permits”

The current Employment Standards Code is riddled with exemptions that allow employers to shrug off their responsibilities to workers. For example, companies that hire people with disabilities are exempt from the sections of the Code dealing with the minimum wage. In practice, this means employers can pay disabled workers any wage they like, even if it is far below the minimum wage.

The Code also excludes whole categories of workers from coverage under the law. For example, people who work as “domestics” (nannies and home cleaners) are explicitly excluded from all protections under the Code. This had also been the case with paid farm workers, but the that’s in the process of being changed, thanks to Bill 6, which was introduced by the new government in 2015.

In addition to statutory exemptions, the Code also allows employers to be excused from their obligations under the law through the use of so-called “Director’s Permits.”

Under this system, employers, and sometimes entire sectors, are allowed to petition the director of the Employment Standards branch for “relief” from certain provisions of the Code.

Some of these permits make sense. For example, permits have been granted to road builders that allow them to work extended hours in the summer in order to take advantage of the long hours of sunlight and help compensate for Alberta's short construction season.

But there are also many permits that make no sense at all. For example, Director’s Permits have been granted to bowling alleys…for no logical or apparent reason.

One of the big problems with Director’s Permits is that they are arbitrary. There are no set criteria to guide the department when considering an application for a permit. And, unlike the passage of legislation or regulation, there is no process for accountability or transparency.

Just how big is the issue of Director’s Permits? Big. There are currently more than 730 permits on the books, covering thousands of Alberta workplaces.

Taken together, the legislative exemptions written into the Code and the system for Director’s Permits, effectively deny basic workplace rights to literally tens of thousands of working Albertans. This is entirely unacceptable.

Solutions:

  • All exemptions included in the Employment Standards Code should be reviewed. The starting assumption should be that all workers deserve protection under all provisions of the Code. Exemptions should be the exception rather than the rule.
  • Exemptions for domestic workers should be removed.
  • The system for granting Director’s Permits should be abolished. If a company, sector or industry can make a strong case for exemptions, those exemptions should be codified in regulations attached to the Code. As regulations, they would be subject to more rigourous review, and there would be stronger systems in place for transparency, accountability and review.

Issue #3: Overtime

Alberta is out-of-step with other provinces on overtime. Most other provinces have a standard 40-hour work week. Ours is 44. That four-hour difference can add up to the loss of a very significant amount of premium pay if people are regularly working 44 hours a week (as many Albertans do).

Another problem related to overtime has to do with provisions in the Code that allow employers and employees to agree to pay out overtime in the form of paid time off instead of cash.

The problem is that under these so-called “overtime agreements” workers are entitled to only one hour lieu time for every hour of overtime worked, while premium pay for overtime is 1.5 times the hourly rate.

Workers who have their overtime dealt with through overtime agreements are obviously being short-changed.

Solutions:

  • Harmonize Alberta with most other provinces by introducing a 40-hour standard work week.
  • Harmonize overtime agreements with paid overtime provisions. Workers should receive 1.5 hours time-in-lieu for every hour of overtime worked.

Issue #4: Statutory Holidays

The section governing eligibility for stat pay for holidays is confusing and in dire need of updating.

Every time a statutory holiday rolls around, employees and employers alike can be found scratching their heads as to what to pay to whom. Ask ten people in the restaurant or retail industry what the rules are and you’ll get at least twelve conflicting answers, from employers and employees alike.

Honest mistakes are often made in interpretations of "usual work day" and length of service to be eligible for stat pay. In fewer cases, the complexity of eligibility and prevalent misunderstandings among workers makes the situation ripe for abuse by unscrupulous employers.

It is time to remove the confusion and complexity around statutory holidays. The solution is actually simple: adopt the Saskatchewan model, in which all employees on the payroll are paid for the statutory holiday, regardless of their length of service and regardless of which days they usually work.

Solutions:

  • Make all workers on the payroll eligible to receive statutory holiday pay.
  • Remove the "usual-day-of-working" requirement for statutory holiday pay, as it creates confusion, misunderstanding, and sometimes abuse by employers.

Issue #5: Vacation

Much like rest breaks and days of rest, vacations are not just an employment frill – they are essential to maintaining a worker's mental health, productivity and wellbeing.

Unfortunately, Alberta lags behind other jurisdictions when it comes to the minimum number of weeks offered for vacation. Currently, a worker can spend virtually their entire career with the same employer and never get more than three weeks of vacation.

In contrast, Saskatchewan offers three weeks after one year, and four weeks after 10 years of continual employment.

Statistics Canada indicates that Albertans take fewer vacation days than any other province. We do not consider this a point of pride. It is an indication that our work-life balance has tipped too much toward work.

Solution:

  • After one year of employment, working Albertans should be entitled to three weeks of vacation. After five years, that minimum should increase vacation to four weeks.

Issue #6: Rest between shifts

The Employment Standards Code currently provides no guidance on providing rest between shifts, except in the case of shift changes. Without access to sufficient rest, the cumulative effects of fatigue leads to physical and mental impairment—which can lead to significant safety issues at the workplace.

Solution:

  • Implement a minimum of nine hours rest between each shift.

Issue #7: Breaks at work

The current Code permits workers to work excessive numbers of hours before mandating a break. Specifically, the wording of the Code allows for a 30-minute break during each shift in excess of five hours. In practice, what this means is that people can end up working eight or nine hours in a row without a rest break.

Solution:

  • Alberta's language should be changed to closely resemble the language used in most other provinces, including Ontario, B.C., Saskatchewan and Nova Scotia. This would require a 30- minute rest break at intervals ensuring a worker works no longer than five consecutive hours.

Issue #8: Notice of schedule changes

The current Employment Standards Code allows employers to switch an employee’s work schedule with only 24 hours written notice. This places many workers in difficult situations especially when appointments must be rescheduled or alternate childcare arrangements must be made.

Solutions:

  • Employers should be required to provide a 1 week notice of a scheduling change.
  • Workers who arrive to work and have their shift cancelled should receive a minimum call out pay of three hours at their normal pay rate.
  • Employers should be required to pay a premium if an employee is on call but is not actually called into work.

Issue #9: Part-time workers

For decades, part time and casual work has been on the rise. While some workers voluntarily choose part time work, there is a growing proportion of workers who are forced into part time work because full time work is unavailable.

The problems of workers that are forced into part time work arrangements are many. They often do not receive compensation that recognizes their work, they are often deprived of benefits, and accordingly must often work at multiple positions just to make a living.

Alberta can no longer ignore this group of workers and their struggle to achieve compensation and benefits that are commensurate with the work they perform.

We also need to remove rules and laws that give employers a perverse incentive that may lead them to create part-time jobs instead of full-time jobs.

Solutions:

  • The Employment Standards Code should require that benefits and compensation be provided in accordance to the work done (pro-rated), not the conditions of employment (whether an employee is full time or part time).
  • It should also be explicitly stated that part time workers have access to all parts of the Code, including statutory holidays, all forms of leave, minimum wage, and overtime pay.

Issue #10: Unjust terminations

Every month, the AFL is inundated with calls from workers who have been terminated arbitrarily according to the whims of the employer, with no employer attempts to take more conciliatory or constructive disciplinary actions.

In more insidious cases, employees have been terminated due to discrimination on a number of grounds such as gender or ethnicity.

Under national labour law, which only applies to federally regulated sectors like transportation and telecommunications, these workers are said to have been fired unjustly and have access to legal recourse. Unfortunately, under Alberta’s Employment Standards Code, no such protections are extended to workers that have been unjustly fired. As long as the employer follows the provisions regarding notice, they can dismiss an employee for almost any reason.

Solutions:

  • Explicit language forbidding unjust dismissals should be introduced into the Employment Standards Code. This is necessary to provide employees with greater job security and with better recourse to remedial action in the face of an unjust dismissal.
  • Specifically, the Code should remove or restrict the ability of employers to terminate employees without cause similar to s. III of the Canadian Labour Code which provides protection from unjust dismissal to Federal employees not under a collective agreement.
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How does Alberta compare to other provinces on the subject of leaves?

One of the evolving elements of employment standards in recent years, both in legislation and employer policy, is the recognition that the complex nature of life often creates conflicts between home and family commitments and work commitments.

Unfortunately, Alberta is far outside the Canadian mainstream when it comes dealing with challenges by providing workers with job-protected leaves and, in some case, paid leave.

For example, the current Employment Standards Code in Alberta does NOT guarantee a person’s job if he or she has to take time off to deal with a critically ill child or the death of a loved one. Your job is not even protected in Alberta if you are called upon by the court to perform jury duty.

The time has come for Alberta to join the Canadian mainstream by expanding non-paid job-protected leaves. We should also become leaders in the country by providing short periods of paid leave for personal illness and/or personal responsibility (eg to deal with a sick child) and domestic violence leave to help people leave abusive and violent situations.

Solutions:

The Employment Standards Code should be amended to include the following types of leaves:

  • An emergency/family responsibility leave of five days per year, which can be accumulated for three years.
  • Leave of up to five days for victims of domestic violence.
  • Bereavement leave of five days when a close family member dies.
  • Jury duty leave when the employee is selected for jury duty.
  • Critically ill child leave when the employee's child is critically ill.
  • Death or disappearance of a child as a result of crime leave.
  • Citizenship leave to attend the employee's citizenship ceremony.
  • Organ-donor leave when the employee donates an organ.
  • Provision for leave to run for political office.
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What about paid sick leave?

Given the fact that Alberta’s Employment Standards Code is so far behind other provinces in terms of unpaid, job-protected leaves, it probably comes as no surprise that it provides no guaranteed, paid sick leaves for working Albertans.

On this issue, Alberta (and, indeed, most of Canada) is far outside the global mainstream.

There are currently 145 countries, including 23 jurisdictions in the United States alone, which give workers the right to be compensated when they’re ill.

Here in Alberta, many employers voluntarily provide paid sick leave for their employees, or do so through collective agreements with unions. But there is no formal guarantee.

The result is that the thousands and thousands of working Albertans who don’t have paid sick leave, will usually drag themselves to work even when there are ill, in order to avoid losing pay or even their jobs.

In the process, they often end up infecting their co-workers, or even their customers. The costs of lost productivity related to the unnecessary spread of illness in workplaces has not been calculated in Alberta, but it almost certainly exceeds the cost to employers of providing a few paid sick days each year.

Solution:

  • Provide paid sick leave of at least five days per year when an employee has to miss work due to a minor illness. All employees should be eligible for this leave, regardless of how long they have worked for their employer (people can get sick in their first week of work, so qualifying periods would defeat the purpose). Workers should be able to accumulate paid sick leave for three years.
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What about new, non-standard, forms for employment?

A growing number of Albertans and Canadians are working in jobs with non-traditional employer-employee relationships. Of particular note are businesses in the so-called “gig economy.”

Companies like Uber, Lyft and AirBnB, mobilize tens of thousands of workers around the world, but most of them are classified as “independent contractors” instead of employees. This helps reduce costs and liabilities for the companies involved, but it dramatically increases the insecurity and precarity of the workers.

One of the most shocking aspects of the rise of this kind of “gig” employment is that, because they’re classified as independent contractors, these workers are completely excluded from protections under laws like the Employment Standards Code (because they are not technically employees). Canadian governments, including the government of Alberta, need to change their laws to better protect workers in the gig economy. They also need to crack down on companies that try to skirt the rules by employing exploitative and deceptive business models.

Solution:

  • Expand the definition of “employee” in the Employment Standards Code (and the Labour Code) to include all or most of the workers in the so-called gig economy.
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How does Alberta compare to other provinces when it comes to the subject of children at work?

Alberta is an outlier among provinces when it comes to rules regarding children at work. Our rules on child labour are also in contravention of the United Nations convention on child labour, to which Canada is a signatory.

Solutions:

  • Existing provisions that allow children between 12 and 15 to work in retail, office and janitorial positions should be revoked.
  • No person under the age of 15 should be allowed to work in a workplace in Alberta, with the exception of very narrowly defined set of jobs, like newspaper/flyer delivery and babysitting.
  • The Code should explicitly end the practice of issuing Director's Permits to allow 12-15 year-olds to work in proscribed jobs.
  • Existing provisions for young persons (age 15 to 17) aimed at guaranteeing their safety and restricting their hours of work should be maintained and more aggressively enforced.
  • Targeted inspections for industries that hire adolescent workers between 15-17 years old should be mandated in the Code.
  • A program of special training for 15-17 year-olds on safety, harassment, and their rights at work should be introduced.
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What about the costs of these reforms? Don’t they represent a big new burden for business?

The good news is that most employers in Alberta – probably the vast majority – already do most of the things we’re proposing. For example, most employers offer better vacation benefits than the current minimum and most provide a small number of paid sick days and don’t fire people if they take an unpaid day off to tend to a sick child or go to a funeral.

So, the changes we’re proposing wouldn’t represent a radical change for the majority of Alberta businesses. Instead, it would be a case of bringing the legal floor closer to the prevailing practice of most good employers in the province.

The only employers who would feel the pinch are the ones currently operating at the margin; ignoring social norms and trying to undercut their competitors through a race to the bottom. Employers like these are the reason we need legislated minimums.

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How can you help?

Are you fed up with rules that stack the deck against working Albertans?

Are you tired of a system that lets employers off the hook, even if they are guilty of repeated violations for the rules?

Do you want to see a new Employment Standards Code that actually protects the rights of working Albertans and introduces effective mechanisms for inspection and enforcement?

Now is the time for you to make your voice heard!

Email your MLA today by clicking on the red button on the side or at the very top of the page. Copies of your message will also be sent to Labour Minister Christina Gray and Premier Rachel Notley.

Also, please contact the AFL office to sign up as a participant in the AFL “Lobby at the Legislature” campaign, taking place throughout May 2017.

We’ll help you make arrangements to meet with your MLA, face-to-face. Don’t worry: we’ll give you the materials, support and training to make the visit easy and productive! And if you don’t want to go in alone, we’ll find people for you to partner with.

With your help, we’re confident that we’ll be able to convince the government to bring Alberta labour laws out of the dark ages and into the 21st century!

Alberta Federation of Labour
Toll Free: 1-800-661-3995
Direct: 780-483-3021
E-mail: afl@afl.org

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