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The state of military leave in Canada

By Yosie Saint-Cyr, LL.B., Managing Editor at HRinfodesk.com---Canadian Payroll and Employment Law News, Updated February 2008 (posted January 2008)

Presently in Canada, around 25,000 men and women are contributing their personal time and energy serving their country in a part-time capacity. The Army Reserve is the part-time component of the Canadian Armed Forces. Most Army reservists work part time in the Army and full time in their civilian jobs. The Canadian Army is planning to increase the strength of the reserves by a further 10,000 over the next few years. In short, a greater reliance will be placed on reservists to meet our growing national and international security commitments.

Until very recently, Canada had absolutely no standing job protection legislation for reservists who serve in the military, either to meet international commitments, such as in Afghanistan, or even if they are called out for the reasons permitted under the National Defence Act.

In addition, reservists are required to take the same levels of training to qualify for their trades and/or their ranks as do regular soldiers. This often involves attending training courses and/or exercises up to two consecutive weeks or more at least once per year. A significant number of individuals in the reserves are often forced into using their vacation time to attend this required training. As a result, the reservist may not have any time left for their personal relaxation or for spending quality time with their families.

Reservists should not have to risk losing their civilian employment to serve their country.

Employers, provincial and territorial governments including the federal government have been actively lobbied in the past few years to take positive steps to accommodate Canadian Forces reservists in the workplace. According to the Canadian Forces Liaison Council, this essentially involved employers voluntarily granting reservists time off without penalty, or requiring them to use annual vacation time so that they can keep up with their military activities. This voluntary system allowed employers the flexibility to consider their organization's operational needs while still supporting Canada; this balance was exemplified in the Federal Government's Reserve Forces training leave regulations.

According to our latest HRinfodesk Poll that asked respondent Has your organization had military reservists called to active duty or to train? this issue does not seem to be of great concern in small to medium size businesses yet. Out of 147 respondents, 128 stated that none of their employees have been called to active duty or training, and they do not have any military leave policy in place in the workplace. Only 10 respondents have had to accommodate employees who are reservists, seven had a military leave policy and three voluntarily accommodated.

However, the Canadian Forces Liaison Council has stated in several of their papers that because reservists lack job protection and their obligation to serve is voluntary, several of them working for small to medium size employers did not expect to have a job to return to when they were called for work-up training with the regular forces and then a six-month deployment so they didn't attempt to get the time off. They just left the military. This may change now that several jurisdictions have implemented military leave provisions under their employment standards legislation (discussed below) and that the Canadian Army is planning to increase the number of reservists. On January 15, 2008, it was reported in the media that Ottawa intends to send a record number of reservists to Afghanistan in the next round of deployment due in March 2008. According to numbers obtained by Le Devoir, in March, one Canadian soldier out of 5 (20%/500) deployed in Afghanistan will be a reservist; compared to 300 Quebec reservists (12%) currently in Afghanistan.

Between March and August 2007, there were 14% of reservists, and in the deployment preceding that in 2006 there were 13%.

Below is a breakdown of the results of the poll that asked participants: Has your organization had military reservists called to active duty or to train?

Recent developments

In 2007, the provinces of Ontario, Manitoba, Saskatchewan, Nova Scotia, Prince Edward Island and New Brunswick enacted military leave provisions under their employment standards legislation to provide a person who is required to be absent from his or her employment for purposes of service in the Canadian Forces Reserves with job security and the right to return to his or her employment when service ends. The leave provisions vary slightly in each jurisdiction.

The federal government, although already supportive of military leave policy, in January 2008, intend to table legislation to cover military leave for federally regulated workplaces and the public service. It is expected that the other provinces and territories that do not yet have military leave provisions will follow with their own provisions.

Legal requirements

In general,

  • “Reserves” means the component of the Canadian Forces referred to in the National Defence Act
     
  • “Reservist” means a soldier serving either part or full time in the Canadian Forces falling under the Primary Reserve force. Reservists are generally employed in a part-time capacity (Class 'A', less than 120 days per year), however may be employed under full time contract (either Class 'B' or 'C'). Note: Every employment standards legislation depending on the jurisdiction allow all or different types of reservist to be entitled to military leave; you must refer to the definition provided for under employment standards legislation in your jurisdiction). We thank Mr. Steve Ball, B.Comm Human Resources Co-op for this revised definition.
     
  • “Service” means active duty or training in the Reserves

Briefly, the jurisdictions with military leave provision provide for the following:

Ontario: On December 3, 2007, the Ontario government introduced and gave first to third reading including Royal Assent to a Bill that provides job-protected leave for military reservists under the Employment Standards Act. The Bill is now in force. Such a leave is available for reservists serving on certain domestic operations, such as search and rescue operations or national disasters such as flood relief or ice storms, as well as for international deployments. All employers covered by the Employment Standards Act, regardless of size, are required to provide the leave to eligible employees.

To qualify for the new leave a reservist must have worked for their employer for at least six consecutive months. Reservists are entitled to an unpaid leave period necessary to engage in the operation they are deployed to. In the case of international operations this would include any pre-deployment (training) or post-deployment activities required by the Canadian Forces.

New Brunswick: On December 20, 2007, Bill 11 received Royal Assent and comes into force immediately. Amendments to the Employment Standards Act allow reservists to be away on unpaid leave for up to 18 months and return to their previous position or a position at a similar level as long as the employee has worked for their employer for at least six months.

Prince Edward Island: On October 18, 2007, the Prince Edward Island government gave first, second and third reading to Bill 6, An Act to Amend the Employment Standards Act to provide a person who is employed in Prince Edward Island and who is required to be absent from his or her employment for purposes of service in the Canadian Forces Reserves with job security and the right to return to his or her employment when service ends. The Bill received Royal Assent and came into force on November 2, 2007.

Employees who have worked for an employer for at least six months and who are in the reserve force will be allowed to take unpaid leave to participate in military training or active service. The length of the period of unpaid leave to which an employee is entitled under the Act for the purpose of service is the period necessary to accommodate the period of service for which the employee is required to be absent from work.

Manitoba: On June 14, 2007, the Manitoba government reintroduced, passed and gave Royal Assent in legislation to a bill that amends the Employment Standards Act to provide a person who is employed in Manitoba and who is required to be absent from his or her employment for purposes of service in the Canadian Forces Reserves with job security and the right to return to his or her employment when service ends.

Members of the Canadian Forces Reserves who have worked for their employer for seven consecutive months, who are absent from work for the purpose of service (active duty and/or training), qualify for unpaid Military (Reservist) Leave.

Employers must provide time off and allow employees to return to their job when the leave has ended. There is no restriction on the length of the unpaid leave or how often a reservist can go on leave; employees can take unpaid leave for as long as they continue to serve.

Saskatchewan: On April 26, 2007, Bill 54 received Royal Assent and came into force on assent. Bill 54, The Labour Standards Amendment Act, 2007 provides a person who is employed in Saskatchewan and who is required to be absent from his or her employment for purposes of service in the Canadian Forces Reserves with job security and the right to return to his or her employment when service ends.

Reservists who give their employer the required notice can now be assured that their service with the Canadian Forces, whether domestic or overseas, will not cause them to lose their job. The employer must grant a period of unpaid leave that may be necessary for the employee to complete his or her period of service.

Nova Scotia: Effective April 24, 2007, the Nova Scotia government enacted a private member's bill (Bill 80) that provides a person who is employed in Nova Scotia and who is required to be absent from his or her employment for purposes of service in the Canadian Forces Reserves with job security and the right to return to his or her employment when service ends.

Every employee has a right to return to that employee's civilian employment if the employee

(a) provides the employer with reasonable notice of the employee's intention to

(i) take a leave of absence for a period of service, and

(ii) return to work upon completion of service; and

(b) returns to work or applies for re-employment at the employee's workplace within a reasonable time upon completion of the employee's service.

To learn more details about the topic of unpaid military leave under employment standards legislation by jurisdiction, please refer to the “Military Leave” topic in the Library section under the selected jurisdiction under the heading Benefits.

The value of supporting the Reserve Force

The Canadian Forces Liaison Council indicates that there are benefits and advantages for the employer in supporting the reserve force. Reservists acquire specific management skills that are useful to all employers - for instance, leadership skills, time and personnel management, communication skills, and the ability to think quickly and make decisions under stressful conditions. The military also encourages the development of values such as integrity, self-discipline, teamwork, and loyalty. Reservists undergo trade and occupational training that is transferable to their civilian workplace and, in many cases, may be equivalent to their civilian trade. This includes first aid training, instructional techniques, and firefighting skills, or training in careers such as clerical worker, vehicle mechanic, airframe technician, financial manager, and many others.

What employers should do?

Employers should familiarize themselves with the legal requirements in their jurisdiction and implement a military leave policy that will communicate a consistent method of granting military leaves of absence.

Since the legal requirements in all jurisdictions provide for unpaid time off to reservists, and that the pay they receive while serving or training in the Canadian Forces is very low; employers should think about a salary continuance plan or a supplemental plan that will top up the amount they receive from the Canadian Forces.

The Canadian Forces Liaison Council is a volunteer organization of business and community leaders that encourages employers and educators to support the part-time military careers of their employees and students in the Canadian Forces Reserves. In particular, the CFLC encourages employers and educators to establish military leave policies and make other accommodations to enable reservists to participate in military training and operations without negative consequences for their job or academic status.

Most supportive employers grant two weeks of annual leave, subject to the operating requirements of the organization. Many of them "top up" the salary with the difference that may exist between military and civilian pay. Moreover, many employers grant extra time off for further courses, and often employers are willing to consider granting up to 12 months' leave without pay so reservists can participate in longer-term activities such as United Nations peacekeeping missions.

For employers and HR managers who are considering developing a military leave policy, a pro-forma created by an HR specialist is available at: www.cflc.forces.gc.ca.



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