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Which workplace law do you find hardest to administer?

By Yosie Saint-Cyr, LL.B., Managing Editor at HRinfodesk.com---Canadian Payroll and Employment Law News, September 2007

It's a well-known fact that complying with employment laws is the biggest challenge for employers and human resource managers. So we wanted to know which employment-related law was hardest to administer. In HRinfodesk's latest poll, respondents were asked to select which workplace law they found hardest to administer.

Here are the results (average response):

It would seem that employment standards and human rights legislation remain a major problem for employers and HR managers; however, from this poll we can also see that the areas of pay equity and occupational health and safety are also big issues.

Unfortunately with these small polls we cannot always know the details of those administrative challenges. One that we are made aware of each day when we receive calls from employers is that many times business owners, managers and HR professionals get into trouble with employment law simply because they are unaware of a few basic principles. Most employers don't intend to cause harm to their employment relationships, but they do because they did not know better.

One thing we can tell you, as an employer and human resources manager knowing the law of your jurisdiction and keeping up to date with any changes is the first step to meeting those challenges head on. Then employers need to obtain on a regular basis good practical information about the law, and gain an understanding of the environment in which the law is applied. As many lawyers have stated in various ways, awareness of the fundamental rules of employment can enhance an employer's ability to judge the implications of their actions, before they are judged.

This commentary will provide information about how these challenges occur under each piece of legislation including solutions employers can use to overcome such challenges. Additionally, there is general information on the purpose, rights and obligations under each piece of employment-law related legislation.

Knowledge provides insight and foresight into protecting the business from the costly pitfalls of employment law.

Where does employment law come from?

Both the federal and provincial governments have authority to regulate labour relations and employment. Whether an employer is subject to federal or provincial legislation depends upon the nature of the business in which it is engaged. The federal government has authority to pass legislation relative to those businesses engaged in inter-provincial activities. That is, communications, broadcasting, banking and transportation, including inter-provincial trucking, railways and airlines. The provincial governments have authority to legislate relative to all businesses that do not fall under federal jurisdiction.

In Canada, the employment relationship is governed by legislation such as human rights, labour relations, employment standards, occupational health and safety, workers' compensation and privacy and common law (except for Quebec). Common law is a body of laws based on custom, usage and rulings by courts in various jurisdictions; mostly laws or legal principles that have been established by courts over the years.

Quebec adopted the French Civil Code, as opposed to the English common law. The civil law, a written legal code, still applies in Quebec and is a body of laws regulating relations between individuals or between individuals and corporations concerning property rights, personal dignity and freedom, and personal injury. Thus, the employment relationship in Quebec is governed by legislation such as human rights, labour relations, employment standards, occupational health and safety, workers' compensation and privacy, and civil law.

Note that in Canada, employment laws related to unionized workplaces are differentiated from those relating to particular individuals. There are two broad categories of employment law. First, collective labour law relates to the tripartite relationship between employee, employer and union. Second, individual labour law concerns employees' rights at work and through the contract for work.

Employment law involves various legal rights and obligations that govern all aspects of the workplace relationship between employers and employees.

These laws are meant to apply minimum standards that guide employers and protect employees, not to make life difficult for employers.

What is the employment relationship?

The employment relationship is a contract; the employee provides services and/or skills in the form of work in exchange for money (wages, salary, pay or remuneration). However, the employer decides how and when the work is done and keeps all the profit from the employee's work. Pay can be hourly, weekly, monthly, annually, or based on production. This forms the employment contract.

Employment standards (see below) set out the minimum standard that must appear in most contracts of employment regarding the issues covered by the legislation.

If there is a written contract, its terms will govern provided they do not violate any minimum standards found in legislative provisions. If there is no written contract, the law will apply. In addition, the courts will imply the terms of the contract based on legislation and common law.

Employment law 101

Minimum employment standards and labour relations

  • Employment Standards

Employment Standards legislation across Canada sets out the minimum rights and obligations (also called working conditions) for all workers and employers. Groups of employees or industries may be subject to a variation or exemption in standards, or be exempt from one or more of the provisions found in the law. In the detailed description of each standard, the most common variations or exemption will be identified.

The rights include minimum wages, payment of wages, minimum working age, hours of work and overtime, vacation pay, public holiday pay, maternity/parental and other leaves, temporary layoff and notification of termination of employment.

Each province or territory has its own version of such legislation and, for industries under the authority of the federal government there is the Canada Labour Code.

Generally, the standards established are considered to be minimums only. The parties are free to agree to greater, but not lesser, employment terms. Furthermore, where legislated standards do not fit the unique circumstances of a workplace, it may be necessary to obtain a permit for a variation or relief from a standard.

To ensure employers and employees understand and follow employment standards, as well as obtain variances, each provincial, territorial government including the federal government (for federally regulated employers) have a labour department or ministry and/or employment standards branch/division that governs and enforce the legislation..

  • Labour Relations

Labour (trade) relations legislation covers unionized workplaces. Its purpose is to ensure the right to organize, encourage collective bargaining, promote harmonious labour relations and provide for effective and fair dispute resolution.

Provincial and federal labour relations legislation regulates the collective bargaining process in each jurisdiction. The legislation imposes a duty to bargain in good faith.

Collective agreements must meet certain minimum standards set out under employment standards legislation. This includes minimum wage, termination notice, leaves and group termination.

Some areas, such as overtime rates and statutory holidays can sometimes be negotiated outside the Act; however, if there is no provision in a collective agreement, the Act applies in these areas.

Any disputes about minimum standards under a collective agreement must be resolved through the grievance process.

Solutions to some challenges under employment standards and labour relations legislation

Obtaining updated copies of the Acts and Regulations, educating and training yourself, your employees and your management staff is crucial.

It is important for employers to become familiar with the provisions of the act and to understand how these provisions are interpreted and applied by the Employment Standards Branch or Labour Board, which is the administrative body, charged with dealing with complaints under the act.

In addition, any workplace policies that you develop around the topics covered by employment standards must not provide less than what is offered in the legislation and/or regulations. Employers are free to develop policies or practices that provide better standards than what is allowed for in the law.

Employers, people who manage personnel and human resources professionals must be aware of amendments, decisions and Ministry policies and guidelines to ensure that their companies are in compliance and that they do not take legal positions which might compromise their rights under the legislation.

To ensure that workers are aware of their rights, employers are required, by law, to post certain documents that inform them of those rights.

Occupational health and safety

  • Occupational Health and Safety Act

Occupational health and safety deals with protecting the safety, health and welfare of people engaged in work or employment. Employers have general and specific duties under the law to take reasonable steps to protect workers against hazards, illness and injuries found in the workplace by assessing the risks and preventing or minimizing their impacts.

All Canadian provinces and territories, including the federal jurisdiction have legislation regulating occupational health and safety in the workplace. Some provinces and territories, in addition to statutory provisions, have detailed regulations, codes and standards dealing with particular industries or activities.

The details of occupational health and safety legislation vary across Canada, as well as industry sectors. The legislation has certain shared characteristics in each province or territory and at the federal level.

  • Workers Compensation Act

All jurisdictions, except federally regulated employers, have government-run workers' compensation systems that provide income replacement to workers who are absent from work as a result of a workplace-related illness or injury. Participation in the plans is generally compulsory for any employer engaged in an industry or activity covered by the insurance scheme. Employees of federally regulated companies are covered under the provincial scheme in the province or territory in which they work.

Generally, employers are required to contribute to the plans in accordance with a rate schedule that categorizes them according to the type of industry or activity in which they are engaged. Employers are required to pay a premium to the workers' compensation fund, based on a dollar amount for each hour worked by employees. In return for participating in the workers' compensation scheme, employers are relieved of liability to the employee as a result of workplace accidents. The employee's claim is limited to the compensation and other benefits provided for under the plan.

Most workers' compensation schemes pay the injured worker a percentage of his/her normal salary subject to maximums established under the legislation. The legislation provides for both temporary benefits for recovering employees and permanent benefits for employees who suffer permanent impairment of their earning ability.

Solution to some challenges under health and safety legislation

Understanding and applying the general duty clause under the Occupational Health and Safety Act is one of the best ways for employers to meet the difficult challenges under the Act and avoid prosecution for failing to take reasonable steps to protect workers by failing to comply with duties under the Act or an established standard. This clause means that employers must take all reasonable precautions to protect workers. It is the underlying thinking of the Act and is what the enforcement/governing body of the Act such as the Ministry of Labour in some jurisdictions, and the Courts will rely on to support charges against employers.

Taking all reasonable precautions means that employers must assess their workplace for all foreseeable dangers that may be present. This means, where an employer recognizes that a hazard exists, he or she is expected to take all steps to deal with that hazard.

This has been confirmed over and over by several courts that have stated that employers must take all the care that a reasonable person might be expected to take in the circumstances to avoid the circumstances that cause or could cause an incident.

In addition, and again, obtaining updated copies of the Acts and Regulations, educating and training yourself, your employees and your management staff is crucial.

It is important for employers to become familiar with the provisions of the act and to understand how these provisions are interpreted and applied by the department or ministry of labour or workers compensation board which is the administrative body charged with dealing with complaints under the act.

Employers doing business in a jurisdiction are required to register with the provincial or territorial workers' compensation agency and make payments required under that legislation. Generally, employers are responsible for reporting accidents and any injuries to workers to the compensation agency. They are also required and sometimes obligated to help return the ill or injured employee to their pre-injury job as soon as medically practicable. When employers establish a return-to-work program, they can improve their experience rating by helping injured workers return to work. A good return-to-work program can help lower the organization's injury costs.

To ensure that workers are aware of their rights, employers are required, by law, to post certain documents that inform them of those rights.

Human rights

  • Human rights Act

Human rights legislation across Canada is put in place to protect people from discrimination. It seeks to guarantee people equal treatment regardless of a particular identity in relation to employment and offers of employment. This means employment decisions should be based on the applicant's ability to do the job and not on factors that are unrelated to the job. For this reason, employers are advised to ask only questions that relate to the job, and not ask questions that might lead to discrimination.

Requirements or duties of employment should be reasonable, genuine and directly related to the job.

Discrimination means treating people differently, negatively or adversely because of their race, age, religion, sex, etc. Each jurisdiction has slightly different grounds for discrimination. As used in human rights laws, discrimination means making a distinction between certain individuals or groups based on a prohibited ground of discrimination.

The duty to accommodate involves eliminating or changing rules, policies and behaviours that discriminate against persons based on a group characteristic, such as race, national or ethnic origin, colour, religion, age, sex (including pregnancy), sexual orientation, marital status, family status and disability (depending on the jurisdiction).

Solution to some challenges under human rights legislation

Employers and human resource specialists should make sure they are doing what they need to avoid doing what they shouldn't be doing under the law; they need to keep abreast of the ever changing law on accommodation. For employees, they need to know what their rights and duties are under the law in this area as well.

In addition, and again, obtaining updated copies of the Acts and Regulations, educating and training yourself, your employees and your management staff is crucial.

It is important for employers to become familiar with the provisions of the act and to understand how these provisions are interpreted and applied by human rights commissions-the administrative body charged with dealing with complaints under the act.

Employers should familiarize themselves with best practices and principles that create an environment of mutual respect where each person is equal in dignity and rights. Compliance with human rights law is a best business practice.

Pay equity

  • Pay Equity Act

Pay equity incorporates the principle of equal pay for work of equal value which is the requirement to pay males and females within the same organization the same salary for work that is judged to be of equal value. A methodology is used that identifies wage gaps and the female salary is raised to the male salaries to achieve the goal of pay equity.

Pay Equity legislation aims to discourage wage discrimination or any policy or practice that may lead to wage discrimination on the ground of sex.

Not all provinces or territories have pay equity legislation. Some deal with the issue under human rights legislation. Those jurisdiction that have pay equity legislation require employers (depending on the size of the company) to implement pay equity for their workplaces.

Solution to some challenges under pay equity legislation

Again, knowledge is the key!

Obtaining updated copies of the Acts and Regulations, educating and training yourself, your employees and your management staff is crucial.

It is important for employers to become familiar with the provisions of the act and to understand how these provisions are interpreted and applied by the Pay Equity Commission, which is the administrative body charged with dealing with complaints under the act.

If you are an employer covered under this law, educate yourself, obtain the tools necessary, and ensure you are complying.

Workplace privacy

  • Privacy legislation

The federal government and some provinces have privacy legislation. The federal legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), applies to commercial activities in any province or territory that does not have its own equivalent legislation. Currently, British Columbia, Alberta and Quebec are the only provinces with their own privacy statutes of general application.

PIPEDA governs the handling of personal employment information in relation to employees of federally regulated employers. The federal legislation does not apply to personal information relating to employees of provincially regulated employers. The use of personal information relating to employment by provincially regulated employers is governed by provincial legislation in provinces that have enacted privacy legislation. In provinces without privacy statutes the use of personal information by employers in the private sector relating to their employees is currently not regulated. However, even in provinces without privacy statutes of general application, there are statutes of application to specific classes of employees such as public sector employees as well as specific privacy requirements in certain statutes such as human rights and occupational health and safety.

Solution to some challenges under privacy legislation

Understand and respect your employees' rights to privacy.

Few companies have policies and procedures in place about how personal information is collected, used, disclosed, or how long it will be maintained. In short, companies need to give this matter some thought, document their practices and let their employees know about it.

Again, knowledge is the key!

Obtaining updated copies of the Acts and Regulations, educating and training yourself, your employees and your management staff is crucial.

It is important for employers to become familiar with the provisions of the act and to understand how these provisions are interpreted and applied by the Office of the Privacy Commissioner, which is the administrative body charged with dealing with complaints under the act.

Conclusion

Employers need to ensure they comply with employment law. Employers also need to make sure they keep up to date with changes introduced through statute, Regulation and case law.

On top of keeping up to date, training and education is required. Employers need to think of the following:

  • Do you send your staff for training to available seminars and workshops?
  • Do you hire external trainers to come in and do training onsite?
  • Do you ensure that management staff and executives are getting training as well?
  • How often are you ensuring upgraded training occurs?
  • Do you feel you are doing what you need to do to keep yourself and your workforce up to speed on what the law says?

Employers need clear policies and procedures for dealing with matters such as their rights, absences, holidays, maternity, retirement and discipline. Your employees need to know what is expected of them and what the organization's response will be in order to avoid confusion or disputes later.

In addition, problems arise from time to time in all workplaces, and in most cases common sense is your best tool. It is important to have a clear idea of the issues, check the facts, and ensure that you take the time and opportunity to get advice and think through the issues.

Furthermore, the leadership style and workplace environment you instill will guide how your employees react. As stated by HR expert Mark J. Surrette, president of Robertson Surrette, ethical and value-based organizations recruit great people and keep great people to build longevity and have long-term success. Human resources staff needs to set the tone for expected and appropriate behaviours by which employees at all levels must abide. Most informed people can look at an organization faced with a situation and be able to prejudge how it will respond to that situation if it is behaving in an ethical fashion. An organization's ethics are formalized not by putting words on paper but by living the words and by rewarding appropriate behaviours and having consequences for inappropriate behaviour.

Employers need to build trust within their organizations. Remember, most employees want to do the right things, so should employers.

Because employment law changes rapidly, First Reference's HR collection includes publications such as HRinfodesk, The Human Resources Advisor (HRA) and Human Resources PolicyPro. These publications work together or individually to assist employers in keeping up to date on legal compliance and best practices. For more information on these publications, visit the First Reference website at www.firstreference.com.

How you will benefit from subscribing to one or all of the publications:

  • Avoid costly litigation or settlements
  • Recruit, hire, discipline and terminate employees in a legal manner
  • Confidently deal with complex employment law and employee relations issues
  • Develop HR policies and procedures that comply with employment law and do not violate federal or provincial statutes
  • Know what constitutes “reasonable accommodations” and how to implement them without creating undue hardship
  • Protect yourself and your organization from the damaging effects of ill-advised employment decisions
  • Track court rulings in the jurisdiction where your organization operates

Even the most conscientious employer occasionally needs help from a lawyer. Although you can handle many employment matters on your own, some issues are particularly tricky and will require some legal expertise. The trick is to figure out which situations require some expert help and which you can handle on your own.



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