Publications

: 2011 Labour and Employment Atlantic Canada Legislative Update

December 20, 2011

Another busy legislative year in Atlantic Canada.  The following is a summary of 2011 changes to labour and employment legislation that you should be aware of as we ring out the year.

1. Nova Scotia

Legislation

An Act to Amend Chapter 7 of the Acts of 1996, the Occupational Health and SafetyAct, S.N.S. 2011, c. 24 (Bill No. 25) – In effect

This amendment raised the maximum penalty under the Act for a first offence to $250,000. For second offences (within five years of a previous offence) and fatalities, the maximum was raised to $500,000.

An Act to Amend Chapter 246 of the Revised Statutes, 1989, the Labour Standards Code, Respecting Worker Recruitment and Protection, S.N.S. 2011, c. 19 (Bill No. 53) – In effect

The following are key elements of this amendment discussed in our comprehensive client update earlier this year.

  • Requires that recruiters of temporary foreign workers obtain a licence from the province's Director of Labour Standards.
  • Requires employers who recruit temporary foreign workers to register with Access Nova Scotia.
  • Prohibits charging fees to workers for job placement services and creates mechanisms to recover any fees charged.
  • Requires all employers, whether of temporary workers or not, to maintain records for employees for three years instead of the previous one-year requirement.

An Act Respecting Pension Benefits, S.N.S. 2011, c. 41 (Bill No. 96) – Effective on a future date by proclamation

The following are key elements of this new legislation as discussed in our more comprehensive client update.

This new legislation follows and adopts many recommendations from recent law reform initiatives, including the 2009 Pension Review Panel report, 2010 government discussion paper and recent amendments of Ontario and federal pension legislation. Many of these changes will benefit plan sponsors, especially the new pension plan options noted below. While many of the provisions from the current Act will remain, there are key differences and additions in the proposed Act. These include:

  • Adding "retired members" as a new category of pension plan participants
  • Allowing for jointly sponsored pension plans and target benefits plan
  • Immediate vesting – all members will be entitled to a deferred pension
  • Enhanced spousal protections
  • More information to plan members
  • The possibility of phased retirement pension benefits for DB pension plans

Before becoming law, regulations must be in place to give full effect to the new Act. For more information on how to provide input into this process see our earlier client update. The deadline for public comments is Jan. 31, 2012.

An Act to Prevent Unnecessary Labour Disruptions and Protect the Economy by Amending Chapter 475 of the Revised Statutes, 1989, the Trade UnionAct, S.N.S. 2011, c. 71 (Bill No. 102) – Effective on a future date by proclamation

The most controversial legislation introduced in 2011 was Bill 102 which provides for First Contract Arbitration (FCA) in NS. For a more detailed update on this legislation see our November client update.

Bill No. 102 largely follows the Manitoba Labour RelationsAct, the only model in Canada which does not require a determination that a party has bargained in bad faith or that there is a dysfunctional bargaining relationship before FCA is available. The amendments to the Trade UnionAct provide:

  • Upon certification, a conciliation officer shall contact both parties within 14 days of the certification to provide information and education on the collective bargaining process and settling a first agreement;
  • The conciliator has between 90 and 120 days from the date of appointment to assist the parties in concluding a first collective agreement;
  • If the conciliator is unable to assist in concluding an agreement, so advises the Labour Board ("Board"), and 90 days have expired since the certification, either party can apply to have a first collective agreement settled;
  • Within 60 days from date of application, an arbitrator (agreed upon by the parties) will either settle the first collective agreement or it can be determined by the Board;
  • If the parties do not agree to proceed by arbitration, the Board shall enquire into the negotiations between the parties. If no agreement has been reached within 60 days, within three days the Board will either a) settle a first collective agreement or b) provide a 30 day extension to bargaining/conciliation if it is Iikely that a collective agreement could be concluded;
  • A further 60 day extension may be granted if the Board deems it likely that an agreement could be concluded and the parties agree in writing. If no agreement is reached, the Board shall settle a first agreement between the parties within 30 days;
  • Unless otherwise agreed, any strike or lockout ongoing at the time of application must end immediately, subject to the Board otherwise providing to allow a totally shutdown workplace to resume normal operations. Employees will be reinstated based on their length of service;
  • In settling the first collective agreement, the Board or arbitrator may consider: a) the terms and conditions in other collective agreements for employees performing similar functions in similar circumstances; and b) other matters considered to be fair and reasonable in the circumstances;
  • A settled first collective agreement lasts for one year from the date it is settled and the parties may, by agreement in writing, extend any time of the time limits related to settling a first contract.

An Act to Amend Chapter 246 of the Revised Statutes, 1989, the Labour Standards Code, Respecting Citizenship Ceremony Leave, S.N.S. 2011, c. 64 (Bill No. 115) – Effective on a future date by proclamation

Bill 115 provides an employee with an unpaid leave of absence for a maximum of one day to attend a citizenship ceremony to receive the employee's certificate of citizenship under the Citizenship Act. Employees must give 14 days' notice (or as much notice as reasonably practicable) and may be required to provide proof of the date of the citizenship ceremony.

Regulations

General Labour Standards Code Regulations, N.S. Reg. 19/201

The regulations were amended to provide for reserve forces training in addition to existing active duty leave. The regulations also define "reasonable notice" of leave as at least 90 days' notice in advance except in an emergency situation.

Labour Standards Code Reciprocating Enforcement Declaration, N.S. Reg. 245/2011

These regulations were amended to declare the Province of Quebec a reciprocating province for the purpose of enforcing orders.

Minimum Wage Order (General), (Construction and Property Maintenance) and (Logging and Forest Operations), N.S. Regs. 257-259/2011

These three regulations were amended to increase minimum wages and provide for future indexing. The current general minimum wage rate (October 1, 2011) is $10.00.

2. Newfoundland and Labrador

Legislation

An Act to Amend the Labour Relations Act, S.N.L. 2011, c. 9 – In effect. The Labour Relations Act was amended to provide provisions to settle first contract disputes.

Section 81 of the Act provides that, where a union and an employer have failed to conclude a first collective agreement after engaging in collective bargaining, either party may request that the Labour Relations Board inquire into the dispute and settle the terms of the first collective agreement. After this application has been made, a new subsection (3) now provides that employees may not strike or continue to do so, and employers may not begin or continue to lock out.

Furthermore, the Board's power to settle an agreement has been fortified under section 83 of the Act. Previously, the Board could only impose a collective agreement for a period of one year. This was amended to extend the time period to a minimum of 18 months and a maximum of 36 months, as determined by the Board.

Section 86.1 was added to the Act to include provisions respecting an expedited arbitration. Section 86.1 allows the parties to a collective agreement, after exhausting the grievance procedure established by the collective agreement, to agree to refer all differences arising out of the interpretation, application, administration or alleged violation of the agreement, or a question as to whether a matter is arbitrable, to the Minister for resolution by expedited arbitration. The Minister may appoint an arbitrator or, with the consent of the parties, appoint a grievance mediator.

The parties must proceed through the grievance procedure under the collective agreement before they can take advantage of the new process. "Expedited" arbitration might therefore be a misnomer. The parties must agree that the expedited arbitration process is appropriate. It appears to simply add a second grievance arbitration mechanism to that existing under most collective agreements. It may be useful in the infrequent case where a collective agreement directs some method other than arbitration to settle grievances. This section has not yet been considered, so it is not clear what benefit might accrue to parties wishing to take advantage of it.

Section 86.2 now allows grievance mediation. In addition to the ordinary provisions of the Act and collective agreements which allow the parties to appoint a grievance arbitrator, union and employer may agree to refer the matter to a grievance mediator. Mediation is available only where the parties agree on the nature of the issues in dispute. Mediation will not result in a binding decision, but will provide a forum for the parties to discuss their differences before a referee.

3. Prince Edward Island

Regulations

Minimum Wage Order Regulations, PEI Reg. EC139/96 s.1

The minimum wage rose to $9.60 an hour as of Oct. 1, 2011. It is anticipated that the minimum wage rate will rise to $10 on April 1, 2012.

4. New Brunswick

Legislation

An Act to Amend the Essential Services in Nursing Homes Act, S.N.B. 2011, c. 29 – Effective at a future date on proclamation

Amendments were made to the Essential Services in Nursing Homes Act regulating strikes and lockouts. In particular, under certain circumstances a lockout cannot occur until after the parties have agreed upon, or the Board has determined, designated positions in the bargaining unit and those positions have been informed. A fine not exceeding $300 may be imposed for each day or part of a day for which a lock-out is imposed in contravention of this new provision. As well, in certain circumstances, at least seven days must have elapsed after notice has been provided to the Board before strikes or lockouts can take place.

An Act to Amend the Pension BenefitsAct, S.N.B. 2011, c. 33 – Now in effect

These amendments to the Pension BenefitsAct consist primarily of new multi-jurisdictional pension plan provisions. Among other things, the Minister now has the discretion to enter into a multilateral agreement respecting multi-jurisdictional pension plans with an authorized representative of one or more designated jurisdictions. An employer or person required to make contributions to a multi-jurisdictional pension plan on the employer's behalf must comply with any requirement set out in the multilateral agreement that applies with respect to the plan and with any requirement imposed under the authority of the agreement.

An Act to Amend the Employment StandardsAct (Bill No. 7) – Now in effect

In 2007, the Employment StandardsAct was amended in order to allow class "C" reservists to take unpaid leave from work for up to 18 months to perform military service without the risk of losing their employment. The new amendments extend the same privilege to all classes of reservists. In addition, reservists will be entitled to take unpaid leave of up to 30 days annually to attend reservist training. There is also a new hardship clause which provides an exemption from the leave requirements when such a leave would create undue hardship for an employer.

Regulations

Employment StandardsAct, N.B. Reg. 2011-54

The hourly minimum wages for 2011 and 2012 are as follows:

April 1, 2011 to March 31, 2012 = $9.50/hr

On and after April 1, 2012 = $10/hr

The minimum wage payable for time worked in excess of the maximum numbers of hours of work (44 hours per week) is as follows:

April 1, 2011 to March 31, 2012 = $14.25/hr

On and after April 1, 2012 = $15/hr

Employment StandardsAct, N.B. Reg. 2011-55

This regulation establishes the minimum wage rate for counselors and program staff employed at charitable or non-profit residential summer camps in the province, as follows:

April 1, 2011 to March 31, 2012 = $418/wk

On and after April 1, 2012 = $440/wk

The foregoing is intended for general information only. If you have any questions, or for a detailed list and background of our Labour & Employment practice group, please visit www.stewartmckelvey.com

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