Brian Johnston, QC, Killian McParland and Bhreagh Ross

On April 6, 2021, Stewart McKelvey was advised by the Federal Labour Program that the Labour Program’s Forward Regulatory Plan 2021–23 (“Plan”) is now available and includes details and timing on 21 planned regulatory initiatives over the next two years.

The Plan is intended to help federally regulated businesses, unions, employer representatives, partners and Canadians plan for opportunities to provide feedback on regulatory initiatives both underway and planned. To learn about upcoming or ongoing consultations on proposed federal regulations, you can visit:

• Consulting with Canadians
• Canada Gazette

We reviewed the Plan and are sharing our summary. The Plan outlines, at a high level, various planned regulatory initiatives for the next two years. Many of these initiatives relate to recent amendments to the Canada Labour Code (“Code”) as well as other new federal legislation (including the Pay Equity Act). Some of the proposed regulatory initiatives are niche or administrative in nature.

This update provides an overview of the Plan’s 21 regulatory initiatives. Federally regulated businesses who may be impacted by these regulatory changes are encouraged to provide feedback and/or commentary on the proposed initiatives.

If you have any questions or comments regarding the following regulatory initiatives, please contact a member of our Labour and Employment group.

Overview of the initiatives

#1: Designating the Head of Compliance and Enforcement

An amendment to the Code came into force on January 1, 2021, allowing the Minister of Labour to designate a Head of Compliance and Enforcement (“Head”). The Head exercises powers of enforcement and performs day-to-day duties with respect to the administration and enforcement of occupational health and safety standards, labour standards and the new administrative monetary penalties regime. This regulatory initiative will incorporate this change, but does not affect the substantive rights and obligations of employees or employers. The stated purpose of these amendments is simply to improve client service.

#2: Exemptions and/or modifications to hours of work restrictions

Changes to the hours of work rules in the Code came into force on September 1, 2019. These amendments generally required federal employers to provide:

• 96 hours’ written notice of schedules;
• 24 hours’ written notice of shift changes/additions;
• 30-minute breaks during every five consecutive hours of work; and
• 8-hour rest periods between shifts or work periods.

The Governor in Council (“GIC”) is permitted to modify or exempt certain classes of employees from the new rules under its regulatory authority, and based on feedback, this is being considered for continuous 24/7 operations.

The Code amendments also provided employees a limited right to refuse overtime work to care for a family member or provide for the education of a family member under the age of 18, but at present no exemptions or modifications are being considered in this regard.

The planned regulations will be developed in two phases, applying first to the marine shipping, longshoring, and marine pilotage sectors; the road transportation sector; and the grain-milling and handling sector. The second phase includes broadcasting and telecommunications sectors, rail and air transportation, and the bank sector.

#3: Equal treatment, temporary help agencies and termination of employees

These proposed regulations are designed to support amendments to the Code that are not yet in force. The Code amendments relate to equal treatment and compensation for employees and termination provisions, including:

• Prohibiting differences in rates of wages based on employment status;
• Protecting temporary help agency employees from unfair practices;
• Entitling all employees, regardless of status, to be informed of employment or promotion opportunities;
• Updating individual and group termination provisions to allow employers to provide pay in lieu of the required 16-week group termination notice, or a combination of notice and pay in lieu; and
• Creating a graduated notice of individual termination that increases based on the employee’s continuous length of service.

The planned regulations are for the related authority to:

• Exempt employers from the application of group termination provisions;
• Establish the value of transitional support measures in a group termination and defining other related terms; and
• Modify requirements, exempting classes of employees, and defining terms regarding equal treatment and temporary help agency provisions.

#4: Long-term disability plan amendments

Amendments to the Code in 2014 required employers to insure long-term disability (“LTD”) plans and ensure eligible employees continue to receive LTD benefits even if the employer became insolvent. The objective of the proposed amendments to the Canada Labour Standards Regulations is to define circumstances and conditions under which certain employers, including Crown corporations, can provide benefits to employees under an LTD plan that is not insured.

#5: Calculation of regular rate of wages and service of documents

These planned amendments to Canada Labour Standards Regulations are intended to:

• Provide clarity to the calculation of wages in situations where employees are required to participate in hearings of the Canada Industrial Relations Board (“CIRB”) and are compensated in ways other than an hourly rate (e.g. commissions); and
• Modernize provisions under the Code relating to service of documents by allowing for electronic serves, substituted service and more forms of proof of service.

The documents being served include internal audit orders, compliance orders, orders to pay, reviews of payment orders or notices, and notices to furnish information. This initiative may have incremental compliance and administrative costs.

#6: Additional record-keeping and technical changes

The purpose of these amendments is to align the Canada Labour Standards Regulations and Standards for Work-Integrated Learning Activities Regulations with recent amendments to the Code, which among other things modify hours of work provisions, reduce or eliminate length of service requirements for most leaves, add a fourth week of annual vacation for employees with 10 years of service, and limit unpaid internships. The planned regulatory amendments are expected to establish related record-keeping requirements and make technical changes. This amendment is expected to have a low impact on business, as employers are already required to keep similar records for other provisions.

#7: Reimbursement of work-related expenses and statement of employment conditions

The purpose of these amendments is to align the Canada Labour Standards Regulations with planned Code amendments (not yet in force) regarding fair treatment and compensation for employees and enhancing employer and employee knowledge of their rights and obligations. The Code amendments include reimbursing employees for work-related expenses, providing employees with information regarding their rights and obligations within 30 days of employment, providing employees a written statement containing information regarding their employment within 30 days, ensuring material is readily accessible, and providing an updated version of this material in the event of termination. The regulations can prescribe factors to consider in determining if an expense is work-related and reasonable, as well as the information that must be included in the statement of employment conditions. These regulations are expected to have incremental compliance and administrative costs.

#8: Updating the minimum age of employment

These proposed regulations relate to amendments to the Code that are not yet in force, including raising the minimum age of hazardous occupations from 17 to 18, expanding authority to create regulations that specify occupations in which persons under the age of 18 can be employed, and including regulatory authorities to fix conditions of that employment. The resulting regulations are intended to support these changes and may have incremental compliance and administrative costs.

#9: Addressing workplace hazardous substances (thermal stress, nanoparticles and ultraviolet radiation)

This Occupational Health and Safety regulatory initiative is intended to mitigate exposure to hazardous substances in the workplace. The proposed amendments update exposure limits and regulatory requirements regarding hazardous substances. These amendments propose new requirements regarding thermal stress, nanoparticles and ultraviolet radiation, clarify ambiguous regulatory text to reflect best practices and improve consistency with other regulatory provisions and Health Canada guidelines.

#10: Protecting employees working in confined spaces

These proposed amendments to the Canada Occupational Health and Safety Regulations are designed to clarify the definition of a “confined space” to focus on its physical characteristics, strengthen regulatory provisions surrounding work in a confined space and clarify the employer’s responsibility towards employees and persons granted access. The amendments would apply to all federally regulated employers and employees, except for those in the oil and gas sector and those employed on board ships, aircrafts and trains.

#11: Levels of sound rules

These proposed changes to the Canada Occupational Health and Safety Regulations include amending the reference to an outdated standard, clarifying ambiguous regulatory text, simplifying the language and providing a more basic duration unit, reducing the risk of hearing impairment by updating exposure limits and thresholds, and adopting surveillance measures consistent with scientific knowledge. Proposed amendments are to reflect current best practices on noise control and hearing loss prevention programming.

#12: Improving clarity in the Canadian Forces Employment Equity Regulations

These amendments are to ensure the “Reserve Force” definition now includes 100 percent of Reserve Force members for the purposes of employment equity calculations. The amendments will minimize legal and compliance risks by reducing ambiguity in the handling of classified/protected information by the Canadian Human Rights Commission and the Employment Equity Review Tribunal. There are no impacts on business.

#13: Motor Vehicle Operators Hours of Work Regulations

The purpose of the proposed amendments is to modernize the Motor Vehicle Operators Hours of Work Regulations, which have remained largely unchanged since coming into force in 1973. The regulatory authority includes modifying or exempting hours of work requirements for certain classes of employee or industrial establishments and providing for the calculation of hours worked by employees of any class. The scope of the changes are currently being considered based on initial stakeholder consultations.

#14: The Nuclear Exclusion Regulations

The purpose of the proposed amendments to the Nuclear Exclusion Regulations is to ensure the current definition of “nuclear facility” in the Ontario Exclusion Regulations can apply to all organizations who operate nuclear facilities and power generation facilities in Ontario, apply the provincial Fire Protection and Prevention Act to those conducting firefighting activities at nuclear facilities, combine current exclusions for Ontario under one exclusion and update the remaining regulations for clarity.

#15: Administrative amendments to the Occupational Health and Safety Regulations

The main objective of the proposed amendments is to address several administrative issues in the regulations. Changes will correct grammatical errors and discrepancies between the English and French versions, add clarity and ensure enforceability of regulatory provisions, improve consistency within or among regulations, and repeal obsolete or unnecessary provisions.

#16: Provision of menstrual products in the workplace

The proposed amendments would require federally regulated employers to provide menstrual products in the workplace. This will be done by amending the sanitation provisions for the various occupational health and safety regulations under the Code.

#17: Modernizing reporting requirements in the Occupational Health and Safety Regulations
Forms currently included in the schedules to the Occupational Health and Safety Regulations will be replaced with a list of information employers must provide to the Labour Program. Electronic forms for the following reports will be available online to facilitate submission:

• Hazardous Occurrence Investigation Report;
• Employer’s Annual Hazardous Occurrence Report; and
• Annual Report on Work Place Committee Activities.

Other minor administrative changes have been proposed to allow stakeholders to better understand the regulations and avoid misinterpretation. These proposed amendments are not intended to change the intent of the regulations or have any practical impact on businesses.

#18: Updating the Oil and Gas Occupational Safety and Health Regulations

The proposed amendments intend to update provisions and standards to ensure regulations remain current. Updates include aligning provisions with the Canada Occupational Health and Safety Regulations, Maritime Occupational Health and Safety Regulations, and the Atlantic Offshore Accords and regulations, updating references to the most recent Canadian and international standards, and correcting inconsistencies between English and French versions.

#19: Developing administrative monetary penalties regulations under the Pay Equity Act

The proposed regulations are intended to deter non-compliance with the Pay Equity Act (“PEA”) through an Administrative Monetary Penalty System. This will allow the Pay Equity Commissioner to levy penalties for prescribed violations of the legislation and regulations. This regime will affect employers with 10 or more employees in federally regulated private and public sectors, including the federal public service and separate agencies, Crown corporations, Prime Minister’s and ministers’ offices, and parliamentary institutions.

#20: Developing Pay Equity Regulations under the Pay Equity Act

The development of Pay Equity Regulations are intended to support the implementation of the PEA in establishing a proactive pay equity regime. The PEA will require employers with 10 or more employees to proactively examine their compensation practices to determine whether there is a difference in compensation between positions that are mostly held by women and those mostly held by men. If differences in compensation exist, employers must increase the compensation of affected employees to achieve pay equity in line with the PEA.

The Pay Equity Regulations will set requirements for:

• Posting notices and pay equity plans by employers;
• Time limits for certain applications and notices to the Pay Equity Commissioner;
• The factors that will be applied when calculating the increase owed to a predominantly female job class when using either of the legislated methods for comparing compensation;
• How an employer or a pay equity committee are to proceed when using the equal line method of comparison and male and female regression lines cross;
• Method for comparing compensation when there is no predominantly male job class that can be used as a comparator;
• A method for comparing frozen and active rates of pay in workplaces with multiple bargaining agents; and
• A process for updating pay equity plans.

The proposed regulations are expected to have incremental costs for private sector businesses.

#21: Amending Wage Earner Protection Program Regulations

The proposed Wage Earner Protection Program (“WEPP”) regulatory amendments include:

• Enabling more timely access to the WEPP when an employer engages in liquidating restructuring proceeding to wind up its business;
• Extending WEPP coverage to individuals employed by foreign companies operating in Canada if their employer enters bankruptcy or becomes subject to receivership in a foreign jurisdiction;
• Improving employee access to WEPP for low-asset insolvencies; and
• Addressing issues identified by the Standing Joint Committee for the Scrutiny of Regulations.

There are no identifiable new costs to businesses.

This update is intended for general information only. If you have questions about the above, please contact a member of our Labour & Employment group.

Click here to subscribe to Stewart McKelvey Thought Leadership.