The federal government recently made numerous significant announcements regarding employee entitlements under Part III of the Canada Labour Code. It is now clear that many new employee entitlements will come into force on 1 September 2019. The government also announced a consultation process concerning further regulatory changes relating to Part III of the code and made changes to the Canada Labour Standards Regulation.
The federal government has established an independent expert panel to provide advice and conduct consultations on the modernisation of labour standards in Part III of the Canada Labour Code. Among other things, the expert panel will study the federal minimum wage and whether it should be determined by the province in which an employee usually works or whether a freestanding federal minimum wage should be enacted.
The Federal Court recently clarified that employees may file an unjust dismissal complaint even if they have signed a release and any decisions by adjudicators to the contrary are bad law. This is an important decision for federally regulated employers that terminate without cause and offer a severance package conditional on signing a release as they must, among other things, adjust their settlement practices and releases to address the risk.
The federal government recently introduced Bill C-86, the Budget Implementation Act 2018. In addition to introducing long-anticipated pay equity legislation, the proposed legislation would make significant changes to the labour standards in Part III of the Canada Labour Code. Some of the proposed changes are unsurprising given the government's past statements. Other changes are unexpected and, if enacted, would have a major impact on both non-union and unionised employers.
A sharply divided Supreme Court of Canada has overruled the Federal Court of Appeal and held that, subject to narrow exceptions, federal employers are not entitled to terminate non-unionised employees without cause. This prohibition applies even if the employer is willing to provide generous notice and severance pay.
The Supreme Court of Canada's 'new labour trilogy' called into question basic aspects of Canadian labour law and sparked a heated debate as to whether Canadian workers had a new set of greatly expanded workplace rights. Recently, the Ontario Superior Court of Justice relied on these three landmark constitutional law decisions to find that the provincial government's conduct at the bargaining table violated the Canadian Charter of Rights and Freedoms.
In January 2015 the Supreme Court issued three landmark constitutional law decisions, sparking huge debate in the labour law community as to whether the Supreme Court had reshaped Canadian workers' rights to organise, bargain collectively and take strike action. However, the British Columbia Court of Appeal now appears to have rejected the idea that the trilogy reshaped the basic foundations of the Canadian labour law system.
The Supreme Court recently held that Canadian workers have a constitutional right to strike, overturning almost 30 years of case law establishing that the guarantee of freedom of association in Section 2(d) of the Charter of Rights and Freedoms does not protect strike activity. The decision came on the heels of two other landmark decisions on Section 2(d), raising questions about basic aspects of Canada's labour relations system.
A 2007 Supreme Court of Canada decision triggered a wave of constitutional litigation that called upon courts and tribunals to determine labour disputes on the basis of constitutional arguments. To date, there has been little consensus on how the freedom of association in the charter should apply in the labour context. However, it appears that the Supreme Court will seek to establish such a consensus in the near future.