The UCP Platform - A Constructive Analysis
Recently, the UCP released its platform for the upcoming Alberta election.
In keeping with the focus of this blog, I would focus on a few specific points dealing with their labour and employment policies, at pages 21 and 22.
Leaving aside the promises to 'appoint a panel' to study minimum wage issues - despite also committing to retain the new minimum wage - some of the commitments call for explanation and additional context.
(1) Wage Differentials
The 'general' minimum wage of $15/hour is not universal. It applies to most employees, but there are specific carve-outs in the regulations under the Employment Standards Code - for example, for domestic workers and salespersons.
This limited range of differentials sets Alberta apart from other Provinces. In Ontario, where the general minimum wage is $14/hour, students under 18 years of age are generally only entitled to $13.15, and servers can be paid as little as $12.20.
In British Columbia, too, liquor servers have a minimum wage of $11.40, instead of $12.65.
As such, the notion of creating wage differentials for young people and/or liquor servers is not inherently outrageous. There's a logic to the student differential, and the minimum server wage, while empirically questionable, has not been catastrophic. However, there are caveats not explored in the UCP platform.
Firstly, Ontario felt it necessary to pair the reduced server wage with tip protections: While 'tipping out' - sharing the server's tips with the host/hostess, kitchen staff, etc. - is a common practice, there were cases in which employers kept all or a portion of the tips received by the server. Ontario provides a reduced minimum wage to these workers, justified by the assumption that they receive - and get to keep - gratuities for their work; allowing employers to retain these funds was unjust. As a result, it legislated restrictions on an employer's ability to take a server's tips.
Secondly, Ontario's student wage is not a youth wage. It has a number of requirements, including that the individual be a 'student', that the individual be under 18, and that a weekly cap on hours be observed - recognizing that there are some minors who are in a position to need to provide for themselves.
The generality would be that people under 18 are looking for part-time employment to pay for their own recreational expenses, save for school, etc., but that they are dependents whose core living costs - food, rent, utilities, etc. - are mostly or entirely covered by their parents or guardians. As such, the 'living wage' mentality that drives wage pressures for most workers...doesn't necessarily have to apply to most teenagers.
But not all teenagers are full time students. In a variety of circumstances, 17-year-olds can find themselves in situations where they must provide for themselves, and to define their wage with reference to the broader demographic of teenagers would result in hardship.
(Other considerations about the student wage include a question about whether or not it impacts employability of unskilled adult workers: If I can hire a 17-year-old for $13/hour, why would I hire an adult for $15/hour for the same work?)
The Verdict: These proposals are not inherently problematic, but need qualifications, exceptions, and other changes, in order to make them work.
(2) "The Regular / Irregular Workday Distinction"
The UCP platform includes the following:
"Return to a regular / irregular workday distinction for calculating holiday pay"
It sounds technical...but what does it mean? For most people, what it means is that if a holiday falls on a weekend, you don't get a paid day off.
The requirement in other Provinces has long been that, if a stat holiday falls on a non-working day, they can either pay you an extra day's wages, or they can give you a different day off without pay. (Some Provinces, like Nova Scotia, actually require employers to treat the next ordinary working day as the holiday.) Conventionally, that means that, if Canada Day falls on a Saturday, a workplace would close Monday to observe it.
In Alberta, though some employers followed that convention anyways, it wasn't required until the NDP's recent reforms. The UCP wants to undo that change.
To put it in perspective, that means that Monday-Friday workers will not be entitled to any benefit from the Christmas and New Year general holidays for the end of 2021 or 2022. An employer would be able to maintain an ordinary Monday-Friday schedule throughout those periods, without any responsibility for any holiday pay.
The motivation for this change seems unclear, too. Bear in mind that certain general holidays (Family Day; Good Friday; Victoria Day; Labour Day; Thanksgiving Day) are defined to fall on weekdays. This is a deliberate policy decision to add in periodic 'days of rest' on days when people are normally working. For a Monday-Friday worker, there are only four shifting holidays - though Canada Day and Remembrance Day always fall on the same day of the week as the other, as do Christmas Day and the following New Year's Day.
With an employer who takes full advantage of it (without exploiting it by manipulating schedules, which is possible in some cases), the result is this: On average, Monday-Friday workers will lose a little over 1 paid day off per year, though those losses will essentially be concentrated into 4 years out of 7.
Employees who don't typically work Mondays (say you're on a Tuesday-Saturday schedule) get hit particularly hard, fully losing an additional 4 paid days off per year - this is basically a 2% pay cut to an employee who doesn't work Mondays; such a worker will lose more than half his statutory holidays. When the purpose of statutory holidays is to provide periodic additional days of rest, this arbitrary and punitive result is tough to justify.
The Verdict: If you consider the policy objectives of statutory holidays, the arbitrary and inconsistent results this policy leads to are irrational.
(3) "30 work days in the 12 months preceding"
Historically, in order to be eligible for general holiday pay - i.e. premium pay if you work on a holiday; paid time off otherwise - you needed to have worked at least 30 days in the preceding year.
The NDP removed that requirement. The UCP wants to put it back.
Again, this isn't outrageous. Many Provinces have some sort of 'tenure' requirement for public holiday pay, and it kind of makes sense - paid time off isn't something you should necessarily get before you've spent any real time working. Ontario requires employees to have been employed for 13 weeks; BC for 30 days. In Nova Scotia, you need to have worked 15 of the last 30 days.
One might reasonably argue that there should be different treatments of this eligibility threshold depending on whether or not the employer actually does require the employee to work the general holiday: If a new hire gets Christmas Day off, there are compelling policy arguments that the individual ought not to be paid for the day off. However, requiring a new hire to actually work Christmas Day at straight pay seems pretty harsh.
However, the proposal itself is not out of line with extra-Provincial comparisons, and has not been widely abused.
The Verdict: This one, despite having room for improvement, is broadly reasonable.
(4) Banked overtime hours
Okay, this will be complicated. Here's what the platform says:
"Return to allowing banked hours to be paid out at regular pay instead of time-and-a-half"
There's a problem with that: Banked hours were never paid out at regular pay. And if the UCP really means (as, to be fair, it might) that it will return to allowing banked hours to be taken as time in lieu at regular pay, there's still a problem with that - time in lieu of overtime pay always been paid at regular pay. And it still is.
So here's the old framework: In Alberta, employees and employers can enter into an 'overtime agreement' allowing for overtime hours to be banked. Up until last year, this meant that the employer had three months to let the employee take those hours, hour for hour, as paid time off, or it would have to pay out the hours at time and a half. So if you normally work 44 hours per week, and for four weeks you were required to work 50, then you have 'banked' 24 hours - and the employer had three months to give you 24 (paid) hours off, or else it would have to pay you for 36.
The NDP government changed this in two ways. Firstly, employees taking time in lieu now get 1.5 hours off for every banked overtime hour - though, importantly, they're still paid at straight time. So if you've banked 24 hours, that means you get 36 paid hours off - or else you get paid 36 hours. Secondly, you now have 6 months to take the time in lieu before the employer has to pay out the banked hours. (This isn't entirely employee-friendly: If you work a lot of overtime in December, it means you're not necessarily getting paid for it until June.)
The NDP's changes largely - subject to certain 'calculation' caveats, that I will explore in more depth below - brought the Alberta framework into line with the rest of Canada. Ontario pretty rigidly requires overtime to be compensated at time-and-a-half, or 1.5x hours in lieu. BC requires that overtime hours be paid at 1.5x or 2x (depending on circumstances), or that they be 'banked' at that rate.
It's not entirely clear what the UCP plans to do here. There are three interpretations:
Regardless of which interpretation we're looking at, it's worth asking 'why'.
The first thing to highlight is that Alberta's 'hours of work' requirements are exceptionally lax: Under the Code, it would be perfectly acceptable for an employer to require an employee to work 12 hours per day for 24 consecutive days. (Even from those requirements, there are industry-specific exceptions, including for oil and gas workers and camp support services.) Having no 'maximum' number of weekly hours, and allowing a formula for days free from work on an 'every four week' rotation, puts Alberta well outside the 'hours of work' customs observed in other Provinces.
In Ontario, for example, while there are industrial exceptions, the 'general' rule is a maximum of 48 hours per week, and at least 48 consecutive hours off every two weeks (or 24 consecutive hours off every week).
The 'old' formula in Alberta serves as a pressure release: If you make your employees work ridiculously excessive hours for months on end, you have to pay them a lot of overtime. Therefore, if you make your employees work 12 hours per day for 24 consecutive days, you will presumably turn around afterward and give a block of paid time off to use up the accrued overtime. (That's an extreme example - and even in contexts where you might expect it, such as the oil and gas industry, there are special rules that change the analysis. I have seen contexts in retail-type environments with less extreme examples of the same phenomenon - work 50 hours one week, 30 the next, etc.) It effectively prevents perpetual excessive hours. However, it largely allowed employers to avoid paying any real extra compensation for short-term excessive hours: If I required an employee to work 80 hours one week, then I could require that employee to work 40 hours per week after that, and provide pay in lieu of 4 hours per week for 9 weeks, at straight time. So the employee gets all the extra hours at straight time only, no premium pay, and no real time off to offset it.
The 'new' formula provides a disincentive to requiring excessive hours in the first place: To avoid overtime expenses, an employer has to employ enough people to keep the various positions staffed without demanding significant overtime - and when employees are called upon to work excessive overtime, they are compensated more for that.
Though that's not universally true, either: 'Averaging agreements' are possible, allowing employers and employees to agree to something more akin to the 'old system' schedule. In advance. With specificity.
Transitioning off of the old system to the new one has created some growing pains for employers. The averaging agreements aren't a perfect solution, for a few reasons - they're a bit paper-heavy, don't quite allow for the flexibility that would seem to be the point of them, and need to be renewed every 2 years. The HR and/or legal expense associated with putting them into place is pretty high, considering that a great many workplaces have such requirements.
And the reason why so many employers are looking for flexibility is because of another relatively unusual, and probably unnecessary, feature in Alberta's Code: Daily overtime thresholds.
In Ontario and Nova Scotia, overtime premiums are only payable if you exceed a given number of hours in a week. If you want to work 10 hours per day, four days per week, that's not generally going to raise an overtime issue. In Alberta, by contrast, you need that averaging agreement in order to do so. Therefore, you can have employees working eminently reasonable schedules, and yet nonetheless the employer incurs overtime costs because they occasionally work more than 8 hours.
Being able to pay time in lieu at straight time is, in essence, a de facto averaging structure: If you're working 10 hours per day, Monday to Thursday, I'll pay you for 8 hours on each day, and then give you 8 hours time in lieu on Friday. Simple, right?
But when you can take time in lieu at straight time (as under the old system), daily overtime thresholds are quite meaningless. Conversely, when you can't, there's a strong argument to be made that daily overtime thresholds are altogether too restrictive.
I would suggest that the old 'time in lieu at straight time' system is problematic. When an eligible employee is called upon to work excessive hours, there ought to be some premium for that. This is, after all, largely the point of an overtime structure. However, there are other adjustments to be made to the current policy, such as eliminating the daily overtime thresholds.
The Verdict: This measure seeks to address real challenges faced by employers, but goes about it in the wrong way.
(4) The Labour Reforms
I won't address these issues in quite the same degree of depth, because they're largely vague in exactly what they plan to do.
While 'restoring the mandatory secret ballot' sounds like it should be pretty obvious, it's not. 'Card check' processes, where unions can certify if they can show that enough of the employees have signed union cards, are common across various Provinces. They are not uncontroversial, however, and there are a few legitimate questions surrounding them.
"Protecting workers" from their dues being used to support political causes "without explicit opt-in approval"...is also controversial, not to mention very difficult to do effectively without some particularly extreme measures. The platform lacks particularity in how this would be accomplished.
But the one that I find most interesting is this one:
"Require the Labour Relations Board to provide legal support to all union workers in order to better understand and exercise their rights"
'Providing legal support' to help people understand and exercise their rights is obviously a positive measure. It looks like an 'access to justice' initiative, which is pretty easy to support.
Except the framing here seems a bit more coercive: Rather than a promise by the government to provide (and fund!) such legal support, it's a promise to 'require' the Board to provide that support. Which is weird, in part because that's really not the function of the Board (and is arguably incompatible with the function of the Board), and in part because the Board is entirely government funded anyways.
The Board is an impartial adjudicative agency. For it to provide legal support to workers would compromise that impartiality - it would be like a judge also acting as lawyer for one of the parties.
Where the government wants to provide parties with legal support - and there are a variety of contexts in which it does - it is usually necessary to have the legal support provided at arm's length from the adjudicative body in respect of which it provides the legal support. Consider, for example, the Ontario human rights framework: To try to improve access to justice, the Ontario government created an entirely separate agency, the Human Rights Legal Support Centre, to help applicants to the Human Rights Tribunal.
If the UCP is promising to fund legal support services for individuals with labour and/or employment issues, that's a proposal that I could get behind. Even aside from the benefit to the individuals themselves, unions and employers (and the Board itself) would also benefit: The number of utterly hopeless actions and applications in labour contexts, commenced by individuals who have not obtained appropriate legal advice, is stunning. Get these individuals legal advice first, and many of these frivolous legal proceedings just go away.
But if the UCP is simply planning to add such legal support services to the Board's mandate, that's problematic in a number of ways.
*****
Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.
This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
In keeping with the focus of this blog, I would focus on a few specific points dealing with their labour and employment policies, at pages 21 and 22.
Leaving aside the promises to 'appoint a panel' to study minimum wage issues - despite also committing to retain the new minimum wage - some of the commitments call for explanation and additional context.
(1) Wage Differentials
The 'general' minimum wage of $15/hour is not universal. It applies to most employees, but there are specific carve-outs in the regulations under the Employment Standards Code - for example, for domestic workers and salespersons.
This limited range of differentials sets Alberta apart from other Provinces. In Ontario, where the general minimum wage is $14/hour, students under 18 years of age are generally only entitled to $13.15, and servers can be paid as little as $12.20.
In British Columbia, too, liquor servers have a minimum wage of $11.40, instead of $12.65.
As such, the notion of creating wage differentials for young people and/or liquor servers is not inherently outrageous. There's a logic to the student differential, and the minimum server wage, while empirically questionable, has not been catastrophic. However, there are caveats not explored in the UCP platform.
Firstly, Ontario felt it necessary to pair the reduced server wage with tip protections: While 'tipping out' - sharing the server's tips with the host/hostess, kitchen staff, etc. - is a common practice, there were cases in which employers kept all or a portion of the tips received by the server. Ontario provides a reduced minimum wage to these workers, justified by the assumption that they receive - and get to keep - gratuities for their work; allowing employers to retain these funds was unjust. As a result, it legislated restrictions on an employer's ability to take a server's tips.
Secondly, Ontario's student wage is not a youth wage. It has a number of requirements, including that the individual be a 'student', that the individual be under 18, and that a weekly cap on hours be observed - recognizing that there are some minors who are in a position to need to provide for themselves.
The generality would be that people under 18 are looking for part-time employment to pay for their own recreational expenses, save for school, etc., but that they are dependents whose core living costs - food, rent, utilities, etc. - are mostly or entirely covered by their parents or guardians. As such, the 'living wage' mentality that drives wage pressures for most workers...doesn't necessarily have to apply to most teenagers.
But not all teenagers are full time students. In a variety of circumstances, 17-year-olds can find themselves in situations where they must provide for themselves, and to define their wage with reference to the broader demographic of teenagers would result in hardship.
(Other considerations about the student wage include a question about whether or not it impacts employability of unskilled adult workers: If I can hire a 17-year-old for $13/hour, why would I hire an adult for $15/hour for the same work?)
The Verdict: These proposals are not inherently problematic, but need qualifications, exceptions, and other changes, in order to make them work.
(2) "The Regular / Irregular Workday Distinction"
The UCP platform includes the following:
"Return to a regular / irregular workday distinction for calculating holiday pay"
It sounds technical...but what does it mean? For most people, what it means is that if a holiday falls on a weekend, you don't get a paid day off.
The requirement in other Provinces has long been that, if a stat holiday falls on a non-working day, they can either pay you an extra day's wages, or they can give you a different day off without pay. (Some Provinces, like Nova Scotia, actually require employers to treat the next ordinary working day as the holiday.) Conventionally, that means that, if Canada Day falls on a Saturday, a workplace would close Monday to observe it.
In Alberta, though some employers followed that convention anyways, it wasn't required until the NDP's recent reforms. The UCP wants to undo that change.
To put it in perspective, that means that Monday-Friday workers will not be entitled to any benefit from the Christmas and New Year general holidays for the end of 2021 or 2022. An employer would be able to maintain an ordinary Monday-Friday schedule throughout those periods, without any responsibility for any holiday pay.
The motivation for this change seems unclear, too. Bear in mind that certain general holidays (Family Day; Good Friday; Victoria Day; Labour Day; Thanksgiving Day) are defined to fall on weekdays. This is a deliberate policy decision to add in periodic 'days of rest' on days when people are normally working. For a Monday-Friday worker, there are only four shifting holidays - though Canada Day and Remembrance Day always fall on the same day of the week as the other, as do Christmas Day and the following New Year's Day.
With an employer who takes full advantage of it (without exploiting it by manipulating schedules, which is possible in some cases), the result is this: On average, Monday-Friday workers will lose a little over 1 paid day off per year, though those losses will essentially be concentrated into 4 years out of 7.
Employees who don't typically work Mondays (say you're on a Tuesday-Saturday schedule) get hit particularly hard, fully losing an additional 4 paid days off per year - this is basically a 2% pay cut to an employee who doesn't work Mondays; such a worker will lose more than half his statutory holidays. When the purpose of statutory holidays is to provide periodic additional days of rest, this arbitrary and punitive result is tough to justify.
The Verdict: If you consider the policy objectives of statutory holidays, the arbitrary and inconsistent results this policy leads to are irrational.
(3) "30 work days in the 12 months preceding"
Historically, in order to be eligible for general holiday pay - i.e. premium pay if you work on a holiday; paid time off otherwise - you needed to have worked at least 30 days in the preceding year.
The NDP removed that requirement. The UCP wants to put it back.
Again, this isn't outrageous. Many Provinces have some sort of 'tenure' requirement for public holiday pay, and it kind of makes sense - paid time off isn't something you should necessarily get before you've spent any real time working. Ontario requires employees to have been employed for 13 weeks; BC for 30 days. In Nova Scotia, you need to have worked 15 of the last 30 days.
One might reasonably argue that there should be different treatments of this eligibility threshold depending on whether or not the employer actually does require the employee to work the general holiday: If a new hire gets Christmas Day off, there are compelling policy arguments that the individual ought not to be paid for the day off. However, requiring a new hire to actually work Christmas Day at straight pay seems pretty harsh.
However, the proposal itself is not out of line with extra-Provincial comparisons, and has not been widely abused.
The Verdict: This one, despite having room for improvement, is broadly reasonable.
(4) Banked overtime hours
Okay, this will be complicated. Here's what the platform says:
"Return to allowing banked hours to be paid out at regular pay instead of time-and-a-half"
There's a problem with that: Banked hours were never paid out at regular pay. And if the UCP really means (as, to be fair, it might) that it will return to allowing banked hours to be taken as time in lieu at regular pay, there's still a problem with that - time in lieu of overtime pay always been paid at regular pay. And it still is.
So here's the old framework: In Alberta, employees and employers can enter into an 'overtime agreement' allowing for overtime hours to be banked. Up until last year, this meant that the employer had three months to let the employee take those hours, hour for hour, as paid time off, or it would have to pay out the hours at time and a half. So if you normally work 44 hours per week, and for four weeks you were required to work 50, then you have 'banked' 24 hours - and the employer had three months to give you 24 (paid) hours off, or else it would have to pay you for 36.
The NDP government changed this in two ways. Firstly, employees taking time in lieu now get 1.5 hours off for every banked overtime hour - though, importantly, they're still paid at straight time. So if you've banked 24 hours, that means you get 36 paid hours off - or else you get paid 36 hours. Secondly, you now have 6 months to take the time in lieu before the employer has to pay out the banked hours. (This isn't entirely employee-friendly: If you work a lot of overtime in December, it means you're not necessarily getting paid for it until June.)
The NDP's changes largely - subject to certain 'calculation' caveats, that I will explore in more depth below - brought the Alberta framework into line with the rest of Canada. Ontario pretty rigidly requires overtime to be compensated at time-and-a-half, or 1.5x hours in lieu. BC requires that overtime hours be paid at 1.5x or 2x (depending on circumstances), or that they be 'banked' at that rate.
It's not entirely clear what the UCP plans to do here. There are three interpretations:
- Taking their platform at face value, you would think that they're reducing the payout value to straight time - so I work 24 hours of overtime, and six months later I get paid 24 hours of regular wages for it. That would effectively eliminate overtime pay, actually making overtime hours worse for an employee than regular hours. It would be pretty outrageous. (Based on other representations that Kenney has made, this appears not to be the intention. The alternative, however, would be that the UCP's policy materially misunderstands how the current overtime provisions in the Code operate.)
- If they just intend to reverse the way that time in lieu is taken, then this still leaves employees worse off than they were before the NDP reforms, because of the extended time that hours can stay in the 'bank'.
- Or perhaps they intend to reverse the NDP changes altogether - though nothing in the policy suggests a reduction in the amount of time that overtime hours can be banked.
Regardless of which interpretation we're looking at, it's worth asking 'why'.
The first thing to highlight is that Alberta's 'hours of work' requirements are exceptionally lax: Under the Code, it would be perfectly acceptable for an employer to require an employee to work 12 hours per day for 24 consecutive days. (Even from those requirements, there are industry-specific exceptions, including for oil and gas workers and camp support services.) Having no 'maximum' number of weekly hours, and allowing a formula for days free from work on an 'every four week' rotation, puts Alberta well outside the 'hours of work' customs observed in other Provinces.
In Ontario, for example, while there are industrial exceptions, the 'general' rule is a maximum of 48 hours per week, and at least 48 consecutive hours off every two weeks (or 24 consecutive hours off every week).
The 'old' formula in Alberta serves as a pressure release: If you make your employees work ridiculously excessive hours for months on end, you have to pay them a lot of overtime. Therefore, if you make your employees work 12 hours per day for 24 consecutive days, you will presumably turn around afterward and give a block of paid time off to use up the accrued overtime. (That's an extreme example - and even in contexts where you might expect it, such as the oil and gas industry, there are special rules that change the analysis. I have seen contexts in retail-type environments with less extreme examples of the same phenomenon - work 50 hours one week, 30 the next, etc.) It effectively prevents perpetual excessive hours. However, it largely allowed employers to avoid paying any real extra compensation for short-term excessive hours: If I required an employee to work 80 hours one week, then I could require that employee to work 40 hours per week after that, and provide pay in lieu of 4 hours per week for 9 weeks, at straight time. So the employee gets all the extra hours at straight time only, no premium pay, and no real time off to offset it.
The 'new' formula provides a disincentive to requiring excessive hours in the first place: To avoid overtime expenses, an employer has to employ enough people to keep the various positions staffed without demanding significant overtime - and when employees are called upon to work excessive overtime, they are compensated more for that.
Though that's not universally true, either: 'Averaging agreements' are possible, allowing employers and employees to agree to something more akin to the 'old system' schedule. In advance. With specificity.
Transitioning off of the old system to the new one has created some growing pains for employers. The averaging agreements aren't a perfect solution, for a few reasons - they're a bit paper-heavy, don't quite allow for the flexibility that would seem to be the point of them, and need to be renewed every 2 years. The HR and/or legal expense associated with putting them into place is pretty high, considering that a great many workplaces have such requirements.
And the reason why so many employers are looking for flexibility is because of another relatively unusual, and probably unnecessary, feature in Alberta's Code: Daily overtime thresholds.
In Ontario and Nova Scotia, overtime premiums are only payable if you exceed a given number of hours in a week. If you want to work 10 hours per day, four days per week, that's not generally going to raise an overtime issue. In Alberta, by contrast, you need that averaging agreement in order to do so. Therefore, you can have employees working eminently reasonable schedules, and yet nonetheless the employer incurs overtime costs because they occasionally work more than 8 hours.
Being able to pay time in lieu at straight time is, in essence, a de facto averaging structure: If you're working 10 hours per day, Monday to Thursday, I'll pay you for 8 hours on each day, and then give you 8 hours time in lieu on Friday. Simple, right?
But when you can take time in lieu at straight time (as under the old system), daily overtime thresholds are quite meaningless. Conversely, when you can't, there's a strong argument to be made that daily overtime thresholds are altogether too restrictive.
I would suggest that the old 'time in lieu at straight time' system is problematic. When an eligible employee is called upon to work excessive hours, there ought to be some premium for that. This is, after all, largely the point of an overtime structure. However, there are other adjustments to be made to the current policy, such as eliminating the daily overtime thresholds.
The Verdict: This measure seeks to address real challenges faced by employers, but goes about it in the wrong way.
(4) The Labour Reforms
I won't address these issues in quite the same degree of depth, because they're largely vague in exactly what they plan to do.
While 'restoring the mandatory secret ballot' sounds like it should be pretty obvious, it's not. 'Card check' processes, where unions can certify if they can show that enough of the employees have signed union cards, are common across various Provinces. They are not uncontroversial, however, and there are a few legitimate questions surrounding them.
"Protecting workers" from their dues being used to support political causes "without explicit opt-in approval"...is also controversial, not to mention very difficult to do effectively without some particularly extreme measures. The platform lacks particularity in how this would be accomplished.
But the one that I find most interesting is this one:
"Require the Labour Relations Board to provide legal support to all union workers in order to better understand and exercise their rights"
'Providing legal support' to help people understand and exercise their rights is obviously a positive measure. It looks like an 'access to justice' initiative, which is pretty easy to support.
Except the framing here seems a bit more coercive: Rather than a promise by the government to provide (and fund!) such legal support, it's a promise to 'require' the Board to provide that support. Which is weird, in part because that's really not the function of the Board (and is arguably incompatible with the function of the Board), and in part because the Board is entirely government funded anyways.
The Board is an impartial adjudicative agency. For it to provide legal support to workers would compromise that impartiality - it would be like a judge also acting as lawyer for one of the parties.
Where the government wants to provide parties with legal support - and there are a variety of contexts in which it does - it is usually necessary to have the legal support provided at arm's length from the adjudicative body in respect of which it provides the legal support. Consider, for example, the Ontario human rights framework: To try to improve access to justice, the Ontario government created an entirely separate agency, the Human Rights Legal Support Centre, to help applicants to the Human Rights Tribunal.
If the UCP is promising to fund legal support services for individuals with labour and/or employment issues, that's a proposal that I could get behind. Even aside from the benefit to the individuals themselves, unions and employers (and the Board itself) would also benefit: The number of utterly hopeless actions and applications in labour contexts, commenced by individuals who have not obtained appropriate legal advice, is stunning. Get these individuals legal advice first, and many of these frivolous legal proceedings just go away.
But if the UCP is simply planning to add such legal support services to the Board's mandate, that's problematic in a number of ways.
*****
Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.
This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
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