Order Fixing January 1, 2021 as the Day on Which Certain Provisions of those Acts Come into Force: SI/2020-74
Canada Gazette, Part II, Volume 154, Number 26
SI/2020-74 December 23, 2020
BUDGET IMPLEMENTATION ACT, 2017, NO. 1
AN ACT TO AMEND THE CANADA LABOUR CODE
(HARASSMENT AND VIOLENCE), THE PARLIAMENTARY EMPLOYMENT AND STAFF RELATIONS ACT AND THE BUDGET IMPLEMENTATION ACT, 2017, NO. 1
Order Fixing January 1, 2021 as the Day on Which Certain Provisions of those Acts Come into Force
P.C. 2020-977 December 4, 2020
Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour,
- (a) pursuant to subsection 402(3) of the Budget Implementation Act, 2017, No. 1, chapter 20 of the Statutes of Canada, 2017, fixes January 1, 2021 as the day on which subsections 320(2), 322(2), 325(3) and 329(3), section 360, subsections 363(2), (5), (6) and (9) and 364(3) and sections 373, 377, 386 and 390 of that Act come into force; and
- (b) pursuant to subsection 20(2) of An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, chapter 22 of the Statutes of Canada, 2018, fixes January 1, 2021 as the day on which section 17 of that Act comes into force.
(This note is not part of the Order.)
Pursuant to subsection 402(3) of the Budget Implementation Act, 2017, No. 1 and subsection 20(2) of An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, this Order in Council (Order) fixes January 1, 2021, as the day on which amendments to the Canada Labour Code (the Code) come into force.
Once in force, these amendments will establish an administrative monetary penalties (AMPs) regime, authorize the development of pilot projects under Part IV of the Code, and introduce compliance orders under Part III of the Code.
To strengthen compliance and enforcement provisions and to create additional incentives to comply with Part II (Occupational Health and Safety) and Part III (Labours Standards) of the Code.
The Code establishes rules applicable to employers and employees within the federal jurisdiction regarding industrial relations (Part I), occupational health and safety (Part II), and labour standards (Part III). The Code applies to employers and employees in federal Crown corporations (e.g. Canada Post) and federally regulated private sector industries, such as
- international and interprovincial transportation by land and sea, including railways, shipping, trucking and bus operations;
- airports and airlines;
- port operations;
- telecommunications and broadcasting;
- industries declared by Parliament to be for the general advantage of Canada — or of two or more provinces —such as grain handling, and uranium mining; and
- First Nations Band Councils.
Part II of the Code also applies to the federal public service.
In 2006, the Federal Labour Standards Review Commission published Fairness at Work: Federal Labour Standards for the 21st Century. The report highlighted the need to improve compliance through better enforcement tools and methods. Feedback from subsequent stakeholder consultations highlighted the need to strengthen the ability of Labour Program inspectors to recover unpaid wages and proactively address compliance issues. Subsequently, the Code was amended through a series of legislative initiatives in order to improve compliance and enforcement.
The Budget Implementation Act, 2017, No. 1, which received royal assent on June 22, 2017, amends Part III of the Code to allow for the issuance of compliance orders and establishes Part IV of the Code. Part IV introduces an AMPs regime, including review and appeal procedures, and enables the names of non-compliant employers to be published. It also authorizes the Governor in Council to make regulations to support the new Part IV. These amendments to the Code will be brought into force through this Order.
An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, which received royal assent on October 25, 2018, strengthens the existing framework for the prevention of harassment and violence, including sexual harassment and sexual violence, in the workplace under Part II of the Code and ensures that occupational health and safety provisions apply to parliamentary workplaces. It also includes an authority for the Governor in Council to make regulations for pilot projects under the new Part IV (AMPs), which will be brought into force through this Order.
The Budget Implementation Act, 2018, No. 2, which received royal assent on December 13, 2018, amends the Code to establish authorities for the designation of a new Head of Compliance and Enforcement (HOCE). These amendments are automatically brought into force when two conditions are met: section 441 of the Budget Implementation Act, 2018, No. 2, and section 377 of the Budget Implementation Act, 2017, No. 1, are both in force. The former is currently in force and the latter is being brought into force by this Order. Therefore, this Order will result in the coming into force of the HOCE amendments.
The amendments brought into force by this Order are intended to improve compliance with the Code and are not expected to result in any increased compliance or administrative costs to federally regulated employers who are compliant with the Code. These employers are also expected to benefit from measures that will help level the playing field by deterring non-compliant employers from undercutting compliant employers.
These amendments are expected to have a positive impact by fostering healthier, safer and fairer workplaces, particularly for more vulnerable workers. For example, research footnote 1 suggests that women benefit from more robust enforcement measures that increase job security, labour force attachment, and confidence in redress avenues and complaint handling, and decrease income inequality, poverty and barriers to enforcing women’s rights.
Part IV — Administrative monetary penalties
Once in force, the new Part IV will allow a person designated by the HOCE to issue AMPs to address violations of Parts II and III of the Code and their regulations. Part IV also allows the HOCE to publish the name of an employer who committed a violation under the Code, including the nature of the violation, the amount of the penalty, and any other information prescribed in regulations. Regulations supporting Part IV of the Code will come into force on the same day that Part IV is brought into force.
Together, these measures are expected to improve compliance with the Code, resulting in a decline in fatalities, injuries, accidents, reprisals, unjust dismissals, unpaid wages and unfair treatment of employees in federally regulated workplaces. This would be of particular benefit to vulnerable workers.
Compliance orders may be issued to an employer that is contravening or has contravened a provision under Part III of the Code, its regulations or any condition set in an excess hours ministerial permit. The compliance order may require an employer, within a specified time period, to cease contravening a Part III provision and take steps to ensure that the contravention does not continue or reoccur. Failing to comply with a compliance order could lead to an AMP.
Compliance orders are expected to provide inspectors with an effective tool for handling instances of systemic non-compliance.
The amended Code will allow the Governor in Council to make regulations establishing pilot projects for the purpose of testing which possible amendments to Part IV or its regulations would improve compliance with Parts II and III of the Code.
The coming into force of Part IV of the Code is the final requirement that triggers the coming into force of the HOCE amendments under the Budget Implementation Act, 2018, No. 2. The HOCE provisions amend Part II, Part III and Part IV of the Code to confer duties of inspectors, regional directors, and many of the Minister of Labour’s powers to a new HOCE. Subject to any terms and conditions specified by the Minister, the HOCE may delegate responsibilities to qualified persons or classes of persons.
These changes — which are similar to existing structures in Quebec, Newfoundland and Labrador, and British Columbia — will provide better oversight and consistency in program delivery and in the enforcement of the Code.
Guidance materials and training
To prepare for the implementation of these changes, the Labour Program is developing training for its inspectorate and other officials, creating tools and resources to help employers understand their obligations under Parts II and III of the Code, and providing for the centralized issuance of AMPs to ensure consistent application.
Initial consultations were held between October 2017 and April 2018 with a wide range of stakeholders regarding the implementation of the compliance and enforcement amendments to the Code contained in the Budget Implementation Act, 2017, No. 1. Stakeholders were invited to submit written comments. In-person consultation sessions were also attended by key employer and labour organizations, advocacy groups, and professional organizations.
A subsequent round of consultations was held with the same stakeholders, beginning in December 2018 and ending in March 2019. These consultations focused on a proposed AMPs regime under the new Part IV of the Code. Substantial feedback was received regarding the proposed regulatory structure; however, stakeholders continued to highlight the need to strengthen the Code’s enforcement measures to ensure a level playing field and to protect employees’ right to work in a safe and fair workplace. The regulatory proposal was prepublished in Canada Gazette, Part I, on August 24, 2019, for a 90-day public comment period.
The consultations revealed a consensus among stakeholders on the need to move forward with efforts to improve compliance and enforcement of the Code. Employee and employer representatives were generally supportive of efforts that will promote compliance with labour standards and occupational health and safety requirements, improve working conditions and ensure that employees are getting timely payment of their wages. Stakeholders expressed the view that in order for the implementation of these amendments to be effective, there will be a need for the Government to provide detailed guidance to employers, employees, inspectors and officials to whom powers are delegated by the HOCE with respect to their individual responsibilities under the amended legislation.
Labour Standards and Wage Earner Protection Program
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