N.W.T. revamps employment standards laws <!--sponsoredarticle-->

Unpaid leave for illness, bereavement spelled out for first time

The winds of employment standards change are blowing across the Northwest Territories, with effects felt by employers and employees alike.

Last summer, the territorial government passed the Employment Standards Act. The new legislation was designed to replace three old pieces of legislation that had governed employment relationships in the territory: Labour Standards Act, Wage Recovery Act and Employment Agencies Act. On April 1, the new act came into force.

The new legislation allows for employers and employees to make agreements for time off in lieu of overtime pay. The old legislation didn’t allow for lieu time. Some employers made informal arrangements under the old laws, but these were technically illegal and could have put employers at risk, said Glenn Tait, a partner who practices employment law with McLennan Ross in Yellowknife.

Now this type of arrangement is enshrined in the new act, which specifically allows for 1.5 hours of paid time off for every hour of overtime worked, if agreed upon by the employer and employee.

The new act also stipulates an employee can be required to work overtime up to an overall daily total of 10 hours. This was uncharted territory before and employers did not have legislative guidance on whether they could require overtime.

Employers will also benefit from a provision in the new act that changes the requirements for days of rest. Previously, employers had to provide one day of rest a week, preferably Sunday if practical. This didn’t recognize the reality of many industries in the Northwest Territories, said Tait, which include mining companies where the common practice is for employees to work two weeks straight followed by time off. Under the new act, employers have the option of providing two consecutive days of rest over two work weeks or three consecutive days over three work weeks.

Other positive developments for employers include allowances for direct deposit of pay and the lowering of the age on which employment restrictions are placed from 17 to 16, which Tait said reflects the workforce demographics of many areas in the Northwest Territories.

The new act also creates the position of employment standards officer, separate from the labour standards officer, to investigate complaints and make recommendations. The officer will also be able to appeal to a single adjudicator rather than the labour standards board, which Tait thinks will facilitate faster decisions in labour cases.

“The labour standards board moved very slowly in turning decisions around,” said Tait. “My hope is going to a single adjudicator process will challenge the time delay normally seen in the appeal process.”

While employers will benefit from several of the employment standards changes, some might make things more difficult. New leave provisions, while good for employees, could be problematic for employers, said Tait.

Unpaid leave wasn’t covered in the old legislation, but the new act requires employers to provide at least five sick-leave days each year, three to seven days of bereavement leave — with no limit on the number of times used — leave for jury duty and up to eight weeks’ compassionate care leave to care for a family member with a serious medical condition.

Tait’s concern is employers are only allowed to ask for a medical certificate if an employee is off sick for more than three days in a row. They can’t do so if the days aren’t consecutive. With a legislated minimum of five days every year, Tait thinks some employees might feel entitled to the days whether they’re sick or not. A potential problem would be an employee taking sick days on Fridays in the summer, with the employer unable to demand proof of illness.

“It remains to be seen whether the sick leave provision ends up being abused by employees,” said Tait. “It’s unfortunate the act doesn’t provide for absenteeism situations.”

Employers will also have to be wary of new constructive termination provisions where the employment standards officer can determine if substantial changes to an employee’s employment were made to discourage her from staying in her job. The problem lies in the fact that the act doesn’t take into consideration advance notice and employers could find themselves needing to prove there was no attempt at discouragement even where they’ve given advance notice of the change, said Tait.

Overall, the new Employment Standards Act gives legislative coverage to many areas of the employment relationship that were ignored by the territory’s old legislation and left many employers to figure it out on their own.

“Before the new act, non-union employers had to follow their own policies and small employers handled things on an ad hoc basis,” said Tait. “It was time for a change.”

The government is still working on regulations to accompany the act that will clarify some of the practical applications. The original intention was to have the regulations ready at the same time the act came into force — one of the reasons the in-force date was set several months after it was passed — but there is still some work to do. Until that time, regulations under the old legislation will remain in effect.

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