July 3rd, 2019
An Act To Make Alberta Open For Business
Third Reading (Passed)
Bill 2 - An Act To Make Alberta Open For Business primarily amendments to two laws - the “Employment Standards Code” and the “Labour Relations Code” - with a focus on changing regulations around how overtime and holidays are managed in the former and how trade unions receive certification to represent employees.
Section 1 of the Act amends the “Employment Standards Code”, beginning with section 23. 1(2)(a) of Bill 2 replaces the existing laws on paid time off. The old law dictated that, instead of overtime pay, time off at 1.5 hours for each hour of overtime will be provided, taken, and paid at the employee’s wage at a time that the employee could have done paid work for the employer. That was repealed, and replaced to say that time off with pay will be provided instead of overtime pay, and that that will be done at the employee’s wage rate. In 1(2)(b), they add in two new sections to clarify that time off with pay earned before September 1st, 2019 must be paid out in accordance to the old laws at the 1.5 hours per hour of overtime worked, unless the overtime agreement provides for a higher rate.
Section 1(3) covers holiday pay legislation. Sections 26, 28, and 29 of the “Employment Standards Act” are repealed and replaced by Sections 26, 27, 28, 29, and 30. Section 26 is changed to include a requirement that an employee is only eligible for general holiday pay if they’ve worked for the same employer for at least 30 work days in the last 12 months. The legislation about not being entitled to general holiday pay stays the same - employees who do not work on a general holiday when scheduled or required to, and employees who are absent without consent on either the last work day before or the first work day after the general holiday.
The new section 27 that’s being added includes a requirement that, if an employee works an irregular schedule and there’s doubt about whether a general holiday is on a day that would normally be a work day for the employee, the employee looks back through the last nine work weeks to see if they’ve worked on the same day of the week that the general holiday is on at least five times. I.e., if the general holiday is on Monday, and the employee worked on a Monday 9 weeks before, 7 weeks before, 5 weeks before, 3 weeks before, and 1 week before the general holiday, then the general holiday is considered a day that normally would’ve been a work day.
Previously, section 28 said that, if an employee does not work on a general holiday, the employee is entitled to general holiday pay that’s at least the daily average for the employee. That’s been repealed and replaced; the new law adds in the additional stipulation that it must be a day that would normally be a work day for the employee in order to qualify for the general holiday pay.
Previously under section 29, if an employee worked on a general holiday the employer had two options: a) pay the employee general holiday pay of an amount that is at least the daily average wage and an amount that’s at least 1.5 times the employees wage rate for each hour that the employee worked that day, or b) their standard wage rate plus one day’s holiday on a day that would normally be a work day, and general holiday pay for that day. That was repealed and replaced, keeping the majority of the language but including the condition that it must also be a normal work day for the employee. The new section 29 also requires that any holiday pay or holiday days earned under section 29 of the previous Act needs to be provided, taken, or paid before September 1st, 2019.
The new section 30 covers holiday pay for work on an unscheduled work day. If a general holiday is on a day that’s not normally a work day for the employee, and the employee works on that general holiday, then the employee is entitled to general holiday pay of at least 1.5 times their standard wage rate for each hour worked that day.
Section 1(4) of the Act is slightly amended to reflect the changes in the numbering scheme for section 29, but the meaning is kept the same. 1(5) does the same thing in amending section 61.1(3).
From here, we move onto Section 2, which amends the “Labour Relations Code”. 2(2) allows the Minister to establish programs to provide support and assistance to employees with respect to the “Labour Relations Code”, the “Police Officers Collective Bargaining Act”, the “Public Education Collective Bargaining Act”, and the “Public Service Employee Relations Act” under section 5 of the “Labour Relations Code”. Section 2(3) amends section 33(a)(ii) by changing a 6-month deadline to a 90-day one, in regards to how long an employee has been paying membership dues to a trade union before the unit applies for certification.
2(4) repeals and replaces the old section 34, which managed certification for unions. It maintains 34(1)’s definition of a “working day” from “any day other than a Saturday, a Sunday, or any other holidays as defined in the Interpretation Act”. It removes a reference to being subject to 34(8) in 34(2)(d) but otherwise maintained the same information. The rest of 34(2) is unchanged, as are (3), (4), and (5). 34(6) also removes a reference to being subject to 34(8). Section 34(7) is also left unchanged.
Section 34(8) is fully removed and replaced. Originally, this section said that a representation vote is not required if evidence submitted in support of the application for certification satisfies the Alberta Labour Relations Board’s condition that 65% of the employees in the unit support the application. This has been changed to say that the Board can prohibit any “electioneering or issuing of propaganda that may influence employees in their voting decision.”
Section 34(9) originally allowed a union to waive its right to certification under 34(8) and go straight to a representation vote, but the new 34(9) says that the Board must conduct a representation vote and complete its investigations into, inquiries into, and consideration of an application for certification as soon as possible, within 20 working days after receiving the application, although this is bumped up to 25 for a mail-in vote.
Section 34(10) originally was about what happened if a trade union failed to reach the 65% support threshold in the original application to receive certification without a representation vote under 34(8) but was still above 40%, but since (8) has been replaced, so has this subsection. The new 34(10) says that the Board has to make every effort to reach the deadline unless the Chair approves an extension, although if the Board does fail to reach them it doesn’t invalidate the proceedings or prevent the completion of the certification process.
The old version of section 34(11) was the exact same as the current version of section 34(8) - the subsection involving the Board’s ability to prohibit electioneering or issuing of propaganda. Since that’s been moved to 34(8), it’s been replaced. The new 34(11) says that section 34 applies with respect to an application for certification made on or after the day on which Bill 2 receives its first reading (which was May 27, 2019).
The old 34(12) was the exact same as the new 34(9), which was the subsection on the deadlines for the Board on making a decision. The new 34(12) says that, if an application for certification is made on the day that Bill 2 receives first reading (May 27, 2019) and the employees have not voted at a representation vote conducted before the day that the Bill receives Royal Assent (TBD), and the union receives a certification under Section 39, then that certification is void.
Now we move onto Section 5, which amends Section 67.1. In 5(1)(a), it replaces the definition of “proceeding” from 67.1(1) and replaces it with a series of definitions of its own for the purposes of section 67.1. This includes “adjudicative body”, which means “a body or person referred to in subsection (1.1) but does not include: a body of a professional association established under an enactment that holds a hearing or other disciplinary proceeding; the Ombudsman; the Provincial Court of Alberta or a judge of that Court; a justice of the peace conferred with the authority to determine a question of constitutional law under the Provincial Court Act; the Court of Queen’s Bench of Alberta or a judge or master in chambers of that Court; or the Court of Appeal of Alberta or a judge of that Court. It also defines “proceeding” to include “any investigation or inquiry of a person or body referred to in subsection (1.1).
5(1)(a) also creates Section 67.1(1.1), which describes who’s included in the previous section’s definition of “adjudicative body”. This includes the Board, and an arbitrator, arbitration board or other body arising from a collective agreement required to be filed under this Act. When dealing with employment matters, this also includes: the Alberta Human Rights Commission and any human rights tribunal appointed under the “Alberta Human Rights Act”; the Appeals Commission and the Workers’ Compensation Board under the “Workers’ Compensation Act”; an appeal body under the “Employment Standards Code”; the Office of the Information and Privacy Commissioner under the “Freedom of Information and Protection of Privacy Act”; a Board of Reference under the “School Act”; any other body or person determined by the Board.
5(1)(b) repeals 67.1(7), which previously said that the Board must notify the director if one of the proceedings that is the subject of the application is under the Alberta Human Rights Act.
5(1)(c) covers amendments to 67.1(10). In 5(1)(c)(i), this is a grammatical change, from “avoiding unnecessary duplicative proceedings” to “avoiding unnecessary or duplicative proceedings”. 5(1)(c)(ii) creates a new subsection - 67.1(10)(d.1) - which gives the Chair or vice-chair the ability to grant an order that can include a direction to a specified adjudicative body to determine one or more of the issues that is the subject of the application for a marshalling order. It also creates 67.1(10)(d.2), which says that, if an order is issued to halt the proceedings under 67.1(10)(d) or (d.1), no further proceedings, investigations, inquiries, or other matters taken by an adjudicative body may be commenced or continued in relation to a matter to which the order applies.
5(1)(d) adds a new clause to 67.1(11), which states that the Chair or vice-chair, in conducting proceedings and making any orders under 67.1 will take into account whether an employee’s right to fair representation with respect to any human rights issue, including a duty to accommodate, has been or will be appropriately investigated and protected if the matter is to proceed by arbitration rather than through a complaint under the “Alberta Human Rights Act”. 5(1)(d) repeals 67.1(11)(c), which says that the director under the “Alberta Human Rights Act” may be informed or influenced by the Board’s proceedings Section 5(1)(e) also repeals 67.1(12), which allowed the Board to defer its decision or give a necessary interim order if it is appropriate to do so pending the director’s decision in relation to a complaint made under the “Alberta Human Rights Act”.
Now we enter into the consequential amendments. These are amendments made to adjust the language of other legislation to accommodate the new laws.
Section 3 amends section 274 of the “Education Act” by adding in section 274(3), which states “Section 67.1(1.1)(c)(v) is amended by striking out “School Act” and substituting “Education Act”.
Section 4 covers the way that Bill 2 will come into force. Section 1 of this Bill (which covered the amendments to the “Employment Standards Code”) will come into force on September 1st, 2019. Section 2(2) will come into force on October 1st, 2019. Section 2(3) and 2(4) are deemed to have come into force on the day Bill 2 received its first reading (May 27th, 2019).
49 (Second Reading);
31 (Comm. o.t. Whole);
30 (Third Reading)
13 (Second Reading);
10 (Comm. o.t. Whole);
10 (Third Reading)
24 (Second Reading);
45 (Comm. o.t. Whole);
46 (Third Reading)