Labour Code review wide open

Burnout, part-time workers and training investment among issues being examined under federal Labour Code review

Does it make sense that minimum work conditions are the same for long-haul truck drivers as they are for bank employees? Should workers be given job protection when they go on sabbaticals? And what would be the economic consequences if labour protections are extended to people who work on a part-time or temporary basis?

A wide range of questions will be put before law academic Harry Arthurs as he heads a series of consultations this fall across the country to hear what’s working and what’s not with Part 3 of the Canada Labour Code. Arthurs is president emeritus of York University in Toronto.

The far-reaching review of labour standards for federally regulated industries is expected to raise provocative questions, throw up novel approaches to labour regulations, or at the very least produce some interesting research on policy options.

The code is a set of labour standards covering 15,000 employers in federally regulated industries such as banking, telecommunications, rail and interprovincial and international transportation and about a tenth of Canadian workers.

The recommendations Arthurs issues next June may result in substantial changes in the legislation, which has not undergone a comprehensive review since its adoption in 1965.

Across the country, several provincial labour departments are watching the process. “Some of them are going to be observers at our hearings. There’s a high level of co-operation between the federal and the provinces on these matters,” said Neil Gavigan, senior director of the federal review.

Several provinces are also looking at their labour standards, including Manitoba, Alberta and the Northwest Territories. In Saskatchewan, a commission to look at working hours has been launched.

Among the questions Arthurs’ commission will tackle is to what extent labour standards should change to respond to the rise in non-standard work arrangements — such as part-time work, temp work and own-account self-employment. Such forms of employment now represent one-third of employment relationships.

Also under scrutiny is whether the law needs updating to reflect significant demographic changes to the workforce, particularly as related to rising levels of stress and work-life conflict.

Since 1965, the share of women has doubled from 31 per cent to 60 per cent. The share of working women with children under six almost tripled during that time, from 25 per cent to 71 per cent. The presence of dual earning couples has more than doubled since 1965, from 33 per cent to 72 per cent in 2002.

Also up for discussion will be whether current federal labour standards are equally effective and appropriate across all industries that are federally regulated.

At the labour department, staff receive a disproportionate number of complaints from employees in the interprovincial and international transport industry, Arthurs said in an interview with Canadian HR Reporter. That’s why he has commissioned a study looking particularly at labour standards in this sector.

“The question we really want to ask is, ‘Is there something peculiar to the trucking industry that makes compliance difficult?’ Maybe the fault is in trying to apply to that industry standards that are designed for other kinds of industry. Or it may turn out to be that we don’t have the appropriate monitoring strategies so that employers feel they can ignore the standards,” said Arthurs.

The review process is expected to generate considerable research on policy options, including a review of emerging labour regulatory regimes. One study will look at the effect of labour regulations on productivity. Another study will look at the levels of labour standards compliance across the different federally regulated sectors.

One study in particular will examine the effectiveness of Quebec’s one-per-cent payroll levy, adopted into law in 1995 to promote employee training and development.

Most of the studies are expected to be completed in the fall.

In addition to legislative compliance, “one of the things I’m invited to do is make recommendations that don’t necessarily have any bite to them,” said Arthurs, adding that a good compliance strategy has to use different forms and different levels of reinforcing the standards.

“Sometimes it’s just a matter of information, sometimes it’s persuasion, sometimes it’s threats of sanctions, and sometimes it’s the actual application of sanctions,” said Arthurs. “So part of what might come out of the review is the launching of a series of conversations within the workplace about what really is the right approach to a problem.”

Nora Spinks, president of Work-Life Harmony, a Toronto-based consultancy on work-life balance, said she’s following the commissioner’s work with much interest because of the potential impact the federal legislation may have on labour standards across the provinces.

Although she has yet to decide whether to make a submission to Arthurs’ review, Spinks gave a few examples of how the law could address stress and work-life pressures.

Workers currently have job protection and seniority protection if they take parental leave. The labour code may offer similar protection for people who take sabbaticals or other forms of “career breaks,” said Spinks, so that people who give 120 per cent of themselves for two and a half years can take six months off.

What’s more, said Spinks, “what we’re seeing is an increased interest, on the part of both employers and employees, to also look at annual hours,” instead of just hours worked over a day or over a week. Conceptualizing hours of work over the course of a year may allow people to work compressed weeks in order to take off two months in a row. There’s a growing interest in being off work December and January or July and August among workers with school-aged children, said Spinks. However, current hours of work legislation that calculates overtime pay over a day or over a week may in fact hinder such arrangements.

Employers may balk at such options, but they’re less onerous than having to deal with burned-out workers, said Spinks.

“If you know that next July and August, two employees are going to be away, you can plan your assignments, your projects, your work experience program for students around that,” said Spinks.

“That’s very different from arriving to work the 30th of June and getting a voice mail from an employee saying they’re going on indefinite stress leave and they’ll be back when they’re back and there’s a doctor’s note arriving by fax in 10 minutes.”

She also wants to see the distinction between part-time workers and full-time workers eliminated, particularly with respect to various legal protections and benefits.

“Employees should be employees should be employees, regardless of whether they’re there 10 per cent time or 30 per cent time or 100 per cent time. And once you shift that concept, questions of equality and flexibility and accommodation and people with multiple responsibilities become much easier and less stigmatizing. It also facilitates things like returning to work after a disability leave.”

The law could be changed to recognize alternative career paths and offer protection for benefits, leave entitlement and access to pension regardless of whether an employee progresses through the ranks at a single organization.

Spinks said although she doesn’t expect to see bold changes to the law, “I know they’re looking at and considering the issues of a diverse workforce and the whole question of moving beyond accommodation and recognizing individual needs balanced with organizational needs. And I think it’s going to be very challenging.”

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