Basic Employment Standards
Each province in Canada enacts comprehensive minimum standards which are the basis for all labour and employment relations, including the employment of salaried managers. These standards generally cannot be lowered or contracted out of by private negotiation.
British Columbia, Alberta, Ontario and Quebec all have employment standards legislation. These Acts are long and complicated by numerous exceptions, and important details are found only on review of the companion Regulations. The key areas covered are the following:
- A PAYMENT OF WAGES
Wages must be paid regularly (at least semi-monthly and within eight days after the end of the pay period in British Columbia, at intervals of not over 16 days in Quebec and monthly in Alberta), at the workplace or otherwise, if mutually agreed, such as by direct deposit in a bank. Unilateral deductions are only permitted as required by law, such as income tax, Canada Pension Plan and Employment Insurance, or as otherwise agreed to by the employee, generally, to pay in whole or in part for such benefits as life insurance or a drug plan.
- B MINIMUM WAGE
The minimum hourly wage rates are set by regulation. The general minimum wage in Ontario is $10.25 per hour or $9.60 for students. In British Columbia, the minimum wage for all employees is $8.00 per hour, and $6.00 for employees who are new to the workforce and have worked less than 500 hours. In Alberta, the minimum wages for all employees is $8.80 per hour. Some salespeople and professional employees are entitled to a weekly minimum wage of $352.00. In Quebec, the minimum wage is $9.00 per hour and is rising to $9.50 per hour on May 1, 2010.
- C RECORD KEEPING
Often neglected by small businesses or with respect to salaried staff, it is nevertheless a requirement that records be made and retained after the employee ceases employment (for two years in British Columbia, and at least three years in Ontario and Alberta). In Quebec, the register for a given year must be kept during a three-year period. It is especially important to keep records of hours worked.
- D HOURS OF WORK
Generally, an employee cannot work more than eight hours in a day - to a maximum of 40 hours per week in British Columbia, 48 hours per week in Ontario, or 12 hours per day to a maximum of 44 per week in Alberta. In British Columbia and Alberta, an employee may work longer hours if there is compliance with the statutory requirements for the payment of overtime wages and the hours of work limitations. Certain professionals are exempt from the hours of work restrictions, including managers, residential care workers and high technology professionals. In Quebec, the regular work week is 40 hours per week, although an employee may work longer hours if there is compliance with the statutory requirements for the payment of overtime pay. Flexible work schedules may also be approved by employees and the Director of Employment Standards. In Quebec, flexible work schedules can be authorized by the Labour Standards Commission, or by the provision of a collective agreement or decree. Also in Quebec, employees may refuse to work in excess of 50 hours per week or more than four hours over their regular daily schedule, or more than 14 hours per 24-hour period. In Ontario, an employer may permit an employee to work up to 60 hours per week by entering into an “excess hours agreement”, subject to approval by the Director of Employment Standards. Additional hours are permissible in the event of an emergency in Ontario, as well as Alberta, where employers may also seek a permit authorizing extended hours.
- E OVERTIME
In Ontario and Alberta, overtime is payable for hours worked in excess of 44 hours in a week at one and one-half times the regular wage rate. In Alberta, it is also payable for hours worked in excess of eight in one day. Ontario and British Columbia also allow employers and employees to enter into averaging agreements. In Quebec, any work performed in excess of 40 hours in a week is payable at one and one-half times the regular wage rate. In Alberta, overtime pay of one and one-half times the employee’s wage must be paid for any hours worked in excess of eight in a day or 44 in a week, whichever is greater. In British Columbia, unless the employee is exempt from the overtime requirements or is otherwise subject to an approved flexible work schedule, overtime is payable for hours worked in excess of eight in a day and 40 in a week, at one and one-half times the regular wage rate. Double the regular wage rate must be paid for all hours worked in excess of 12 in a day and 48 in a week. Overtime may generally be “banked” and time taken off in lieu of payment subject to certain regulatory requirements. In each province, management employees and other designated employees are exempt from the overtime pay requirement. In Quebec, the employer may still have to pay management employees their regular salary for all hours worked, including those in excess of the regular workweek, if they are paid by the hour or if an hourly rate can be determined.
- F PAID PUBLIC HOLIDAYS
Employees are entitled to regular pay without working for certain statutory holidays per year (nine in British Columbia and Alberta, 10 in Ontario and eight in Quebec). As well, the summer civic holiday in Ontario is generally paid as if it were a statutory holiday.
- G VACATION WITH PAY
An employee in Ontario is entitled to at least two weeks’ vacation leave per year with vacation pay calculated at 4% of the previous year’s wages. In British Columbia, Alberta and Quebec, an employee is entitled, after the completion of each year of employment, to at least two weeks vacation leave per year, with one additional week where the employee has completed five continuous years of employment. Vacation pay is calculated at 4% of the previous year’s wages for the first four years of employment (five in British Columbia and Quebec) and 6% thereafter.
- H BENEFIT PLANS
In Ontario, differentiation on the basis of age, sex or marital status is generally disallowed, but is subject to numerous and, generally, actuarially-based exceptions. In British Columbia, differentiation on the basis of age, sex, marital status, physical or mental disability, is allowed only if it relates to the operation of a bona fide retirement, superannuation, pension or employee insurance plan or, in the case of age, a bona fide seniority system.
- I PREGNANCY/PARENTAL LEAVE
Pregnant employees are entitled to pregnancy leave (18 weeks in Quebec, 17 weeks in Ontario and British Columbia and 15 in Alberta) followed by parental leave (52 weeks in Quebec; 35 weeks if pregnancy leave was taken, or 37 weeks if not in Ontario and British Columbia; 37 in Alberta) with the assurance of reinstatement in the same job, if it exists, or a comparable position. In Quebec, if the same position no longer exists, the employer must recognize all the rights and privileges to which the employee would have been entitled if she had been at work at the time the position ceased to exist. In Quebec, fathers are entitled to a five-week paternity leave. Parental leave is also available to fathers and adoptive parents. Both pregnancy and parental leaves are unpaid by the employer, although employees may apply for government-paid Employment Insurance benefits. In Quebec, as of January 1, 2006, the pregnancy, paternity, parental and adoption benefits paid by the federal Employment Insurance Plan, have been replaced by the Québec Parental Insurance Plan, where parents may opt between a basic plan and a special plan, depending on the length of their leave and the rate of income replacement. In Quebec, the benefits for pregnancy leave may vary from 15 to 18 weeks, the benefits for paternity leave may vary from three to five weeks, while those for parental leave will vary from 25 to 32 weeks. The Plan is also available to self-employed individuals.
- J OTHER LEAVES
In British Columbia, employees are entitled to five days’ unpaid leave each year to attend to family responsibilities, as well as three days’ unpaid bereavement leave on the death of a member of the employee’s immediate family. In Ontario, employees whose employers employ 50 or more employees are entitled to 10 days’ unpaid emergency leave each year for urgent circumstances, bereavement, personal illnesses or to attend to those of a family member. Compassionate care leave of up to eight unpaid weeks to attend to a dying family member is available in Ontario and British Columbia. In Quebec, employees are entitled to 10 days’ unpaid leave per year to attend family responsibilities. Quebec employees can also be absent from work, without pay, for a maximum of 12 weeks per year, to care for a close relative who was the victim of a serious accident or a serious illness. Where the minor child of an employee has a serious and potentially terminal illness, the unpaid leave may be extended to 104 weeks. In Quebec, an employee can be absent from work for a period of up to 52 weeks, if his or her minor child has disappeared, or if his or her child or spouse commits suicide. If the death of the spouse or child of a Quebec employee occurs during, or results from, a criminal offense, he or she may be absent from work for a period of up to 104 weeks. In Quebec, employees are also entitled to four days’ unpaid and one paid day of bereavement leave on the death of an immediate family member.
- K TERMINATION
Absent a serious fault (in Quebec) or just cause for dismissal, minimum statutory written notice or pay in lieu of notice, is required for every terminated employee with more than three consecutive months (in British Columbia and Quebec), or three months (in Ontario and Alberta) of service on a scale increasing with service up to eight weeks. Greater notice and administrative requirements exist in the event of group terminations of 50 or more employees effected within short periods of time. In Quebec, an employer must give a notice to the Minister of Labour in case of collective dismissal of 10 employees or more.
- L REINSTATEMENT
It should be noted that in Quebec, the Act respecting Labour Standards provides for administrative complaints where an employee can specifically seek reinstatement. For example, employees credited with two years or more of continuous service may not be terminated without just and sufficient cause. Federally regulated employees can also be ordered to reinstate employees with at least one year of service that were dismissed without cause in certain circumstances.
- M SEVERANCE PAY
In addition to the statutory notice requirements in Ontario, severance pay is payable to terminated employees with five or more years of service in certain group termination situations, and in individual terminations if the company’s Ontario payroll is greater than $2,500,000 per annum. Severance pay is calculated as one week’s wages per year of service, to a maximum of 26 weeks. Statutory severance pay is not required in any other province, but is payable in the case of federally regulated employees with one or more years of service. This amount is calculated as the greater of five days’ pay or two days’ pay per year of service.
- N COMMON LAW NOTICE
As the legislative requirements set minimum standards only, substantially greater notice periods may be expressly set out in the employment contract or, in the absence of an express provision, an obligation to provide “reasonable notice” will be implied by the courts. This period is assessed by the courts on a case-by-case basis, depending on an employee’s age, position, length of service and the availability of alternate employment. For a long service managerial employee, the reasonable notice period can be as high as 24 months. The Civil Code of Québec contains similar provisions.
- O OTHER LEGISLATIVE REQUIREMENTS IN RESPECT OF REMUNERATION AND BENEFITS
- vi. Canada Customs and Revenue Agency: deductions at source are required for the federally administered Canada Pension Plan, Employment Insurance and income tax payable by individual employees. Employers are also required to pay Canada Pension Plan and Employment Insurance premiums.
- vii. Ontario Employer Health Tax (“EHT”) (a “medicare”-type plan; similar plans exist in some other provinces including Quebec, although the employer is not required to fund them in British Columbia or Alberta): employee health coverage is provided by revenues collected under the EHT, a tax on employers calculated as a percentage of payroll.
- viii. Workers’ Compensation: new employers in almost all industries must register immediately with the British Columbia or Alberta Worker’s Compensation Board, the Ontario Workplace Safety and Insurance Board, or la Commission de la santé et de la sécurité du travail in Quebec, as the case may be, and will thereafter be assessed a premium on payroll according to their industry group. An employee who is injured at work must then generally rely on the collective accident fund, and is prohibited from commencing separate legal action against his or her employer.
- P PSYCHOLOGICAL HARASSMENT
In addition to the existing protection against discrimination and harassment based on prohibited grounds in human rights legislation, employees in Ontario and Quebec will also benefit from new stipulations prohibiting psychological harassment in the workplace.
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