Work-life balance, right to disconnect focus of government’s planned changes

Caution required to maintain flexibility for business growth: Lawyer
By Marcel Vander Wier
|Canadian HR Reporter|Last Updated: 09/13/2018
If people have heavy workloads, they may feel it’s necessary to look at their email after hours, and that’s very hard to legislate against, said Kendra Strauss, director of labour studies at Simon Fraser University. Credit: Jacob Lund (Shutterstock)

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The federal government has committed to an overhaul of the Canada Labour Code (CLC) to ensure it better reflects the realities of the 21st century.

Established in the 1960s, the CLC sets out the basic rights for the 900,000 employees in federally regulated industries such as banking, telecommunications and interprovincial and international transportation.

 “A modern set of federal labour standards will better protect Canadian workers and help set the stage for good-quality jobs, especially for workers in part-time, temporary or low-wage jobs — many of whom are struggling to balance work and family,” said Employment Minister Patty Hajdu.

“Standards that reflect current workplace realities will help employers recruit and retain employees while also improving their well-being.”

Last month, the government released a What We Heard report, stemming from consultations that included more than 3,000 participants.

The report encompassed 11 months of feedback the government received about labour standards modernization. Key themes included improved access to leaves and annual vacation, further support of work-life balance, and pressure to update scheduling provisions and protections around employees in non-standard work agreements.

Job insecurity, the possibility of implementing a federal minimum wage and the right to disconnect were also addressed in the report.

The government had previously made changes to the CLC in December 2017, including strengthening compliance and enforcement provisions, adding a right to request flexible work arrangements, and introducing new unpaid leaves for family responsibilities.

The next round of changes is expected to be in place by next September, following the introduction of legislation this fall.

Changing workplaces

The expected changes follow in the footsteps of Ontario’s recent employment standards overhaul, with alterations planned for everything from scheduling to equal pay for equal work provisions, according to Michelle Henry, partner at Borden Ladner Gervais in Toronto.

“Part of what we saw with the provincially regulated employers that we are seeing under these proposals is it tends to be more employee-friendly and tends to take away from some of the flexibility which employees actually need,” she said.

“There is a need to take a look at it. But I think we need to be cautious in terms of what we try to regulate as opposed to protecting employees, but also allowing employers to have the flexibility to grow their business as required.”

The choice to update the CLC is a solid — if not symbolic — gesture by the government, said Scott Schieman, sociology professor at the University of Toronto.

Legislation can help shift corporate culture in a time when workers simply want to feel valued, he said.

“I don’t think it’s an empty gesture or an empty symbol,” said Schieman. “The word ‘right’ — the right to disconnect — implies that somebody’s looking out for your well-being and you’re not just a worker 24-7. For-profit companies could benefit — not-for-profit as well — with the understanding that there is life outside of work, and often those kinds of needs are really important to be mindful of.”

“To the extent that people feel it’s unfair that they have to work outside of regular work hours — whatever those mean anymore — that sense of unfairness is bad in any organization,” he said.

“Legislative changes probably pop up because if it’s left to companies or organizations to address these issues on their own, they might not. It’s a pretty big cultural shift.”

Limits of regulation

The efficacy of the proposed regulations surrounding the right to disconnect is a critical consideration for the federal government, said Kendra Strauss, director of the labour studies program at Simon Fraser University in Burnaby, B.C.

“It’s one thing to mandate that employers can’t require people to look at their emails, (but) if people have heavy workloads, they may feel that it’s necessary to look at their email and that’s really something that is very hard to legislate against,” she said.

“What the government is probably trying to weigh up is that having legislation, or having a regulatory framework, means that people cannot be required to effectively do paid work outside of their contracted hours of work. What it would prevent employers and employees from doing is requiring excess work outside of normal working hours beyond what’s been agreed.”

However, companies with continuous operations could be affected detrimentally, said Henry.

“If they are going to implement a right to disconnect, then they would need to at least build in some exemptions for these industries where the nature of the work essentially requires an employee to be scheduled last minute or to be available 24-7,” she said.

“I think there is enough legislation that provides the protections that are needed… You don’t have to go another step and say, ‘Employees, you now have a right to not answer your phone if your employer calls, if it’s after five o’clock.’ I think that’s a bit much because you look at the issue of flexibility, but you also look at it from the business standpoint.”

“It would be, in my view, an over-regulation, because there are other ways that it could be addressed,” said Henry.

“They don’t need to have an actual rule saying, ‘An employee has a right to refuse to pick up a phone after hours or to refuse to answer email.’ I think that’s overstepping just a little bit, and not recognizing that we need that flexibility because of the nature of the workplace nowadays.”

Many progressive employers already offer employees a work-from-home policy to promote work-life balance, she said.

“There is that sort of fluidity that we’re seeing in a lot of workplaces, and what I would be concerned about is that the right to disconnect sort of inhibits that. It’s a give and take, and I think that implementing a rule or any provision that says you have a right to disconnect may not be helpful, or at least it may not have the intended purpose that it’s meant to achieve at the end.”

Striking a balance

Future regulatory changes should strive to chart a middle ground, said Strauss.

“There has to be a balance within society between the needs of employers and the needs of employees to be able to have a decent standard of living in the society in which they live,” she said.

“I do think that these kinds of changes could create more regulation around some of these issues to do with scheduling and flexibility for employers… (but) there are two sides to this.”

“Where employers are looking to work with employees to make flexibility work for both parties, this could help create a more level playing field for employers who want that positive relationship with employees,” said Strauss. “That should not be underplayed — that this could benefit both parties if implemented constructively.”

HR professionals in the federal sector would be wise to review current policy surrounding issues such as personal leave, and ensure it has the flexibility to incorporate the new legislative changes, said Henry.

“Most employers are providing more than minimum standard.”

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