Vol. 143, No. 14 — July 8, 2009

Registration

SOR/2009-194 June 18, 2009

CANADA LABOUR CODE

Regulations Amending the Canada Labour Standards Regulations

P.C. 2009-1000 June 18, 2009

Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour, pursuant to section 247.97 (see footnote a) of the Canada Labour Code (see footnote b), hereby makes the annexed Regulations Amending the Canada Labour Standards Regulations.

REGULATIONS AMENDING THE CANADA LABOUR STANDARDS REGULATIONS

AMENDMENTS

1. Subsection 19(6) of the Canada Labour Standards Regulations (see footnote 1) is replaced by the following:

(6) For the purposes of section 206, subsections 210(2), 230(1) and 235(1), paragraphs 239(1)(a) and 240(1)(a) and section 247.5 of the Act, if an employee is engaged in multi-employer employment, that employee is deemed to be continuously employed.

2. Subsection 24(2) of the Regulations is amended by striking out “and” at the end of paragraph (m), by adding “and” at the end of paragraph (n) and by adding the following after paragraph (n):

(o) with respect to leave granted under Division XV.2 of the Act to an employee who is a member of the reserve force,

(i) the dates of commencement and termination of the leave and a copy of any notice concerning the leave,

(ii) a copy of any medical certificate submitted by the employee in respect of that leave,

(iii) a copy of any document provided under section 247.7 of the Act, and

(iv) a copy of any notice issued under subsection 247.8(1) or 247.95(2) of the Act.

3. The portion of section 29 of the Regulations before paragraph (a) is replaced by the following:

29. For the purposes of Divisions IV, VII, VIII, X, XI, XIII, XIV and XV.2 of the Act, the absence of an employee from employment is deemed not to have interrupted continuity of employment if

4. Schedule II to the Regulations is amended by adding the following after “Payment of Wages”:

Leave of Absence for Members of the Reserve Force

COMING INTO FORCE

5. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

Reservists who take a leave of absence from employment to participate in designated operations or activities pursuant to the new Reservist leave provisions in Division XV.2 of the Canada Labour Code (the Code) currently do not benefit from the continuity of employment provisions that apply in the calculation of certain leave benefits (e.g. bereavement leave) and also other benefits (e.g. severance pay).

The amendments to the Canada Labour Standards Regulations (the Regulations) ensure that its continuity of employment provisions are applicable to Reservists under the new Division XV.2 (Leave of Absence for Members of the Reserve Force) of the Code.

This initiative ensures that Reservists have the same consideration in respect of continuity of employment and record keeping as other employees of federally-regulated entities governed under the Code.

Description and rationale

Division XV.2 of the Code was adopted to provide employees with a right to job protection when they take a leave of absence without pay for service in the Reserve Force. It also prohibits discrimination in employment on the basis of reservist status.

The amendments to subsection 19(6) and section 29 of the Regulations incorporate a reference to Division XV.2 of the Code to specify that employment status continues during the Reservists’ leave of absence to participate in active military service in designated operations or activities. This applies to Reservists employed by a single employer as well as Reservists engaged in multi-employer employment (e.g. longshoremen). Continuity of employment is taken into consideration under the Code for the purposes of determining eligibility and calculating entitlements to a number of leave and benefit provisions, including maternity leave, bereavement leave, sick leave severance pay and vacation amongst others.

Finally, the amendment to subsection 24(2) of the Regulations requires employers to keep a record of information pertaining to the Reservists’ leave consistent with the record keeping requirements of other types of leave under Part III of the Code. Information may include a record of the dates of commencement and termination of the leave, a copy of any notice informing the employer of the length of the leave, documents provided as proof of Reservist leave (if the employer requests proof), notice from the employee informing the employer of the date of return to work, documents postponing the employee’s return to work if insufficient notice was given, any notice sent to the employee indicating a change in wage or benefits, and other documents such as medical certificates.

These amendments do not create additional obligations on employers. Administrative costs are minimal for employers, as they already have record-keeping obligations, and are subject to compliance, under the Code. The Regulations already impose record-keeping obligations on federally regulated employers in relation to various other types of leave provided for under Part III of the Code. This amendment will ensure that Reservists taking leave receive similar benefits to persons taking other type of leave under the Code (e.g. maternity leave) and that the Reservist leave benefits under the Code are also captured in the Regulations where required.

While the specific amendments do not have a direct social impact, the overall impact is that those Reservists who wish to volunteer for active service in designated operations or activities (e.g. deployment to Afghanistan or training) will take the leave knowing that their years of service and seniority continues to accrue through the continuity of employment provision.

Consultation

When legislation came into force in April 2008 (see footnote 2) that created job protection for federally regulated Reservists, exchanges of information and policy discussions were held with the Canadian Forces Liaison Council (CFLC) Secretariat, which is mandated under the Department of National Defence to obtain the support of organizational leaders (e.g. employers) in Canada to enhance the availability of Reservists for military duties. At the time, and in the context of the mission in Afghanistan, instituting job protection for Reservists was an important priority for the Government of Canada and the provinces.

Since then, the CFLC has been consulted about these amendments and they support them.

Implementation, enforcement and service standards

The Memorandum of Understanding (MOU) between the Labour Program and the Secretariat of the CFLC was signed in February 2009, and outlines a collaborative arrangement to implement the new Reservist leave provisions.

Employers and Reservists are supported through various programs established by the CFLC, such as the Reservist Assistance Program, as well as through outreach to employers and educational institutions.

Information regarding implementation of the amendments will be communicated to employers through the CFLC, who routinely distribute information to employers of Reservists.

The Labour Program and the CFLC are committed to an ongoing exchange of information and consultation to monitor the implementation of the new Reservist leave legislation and ensure best practices.

Employers who are found to be in non-compliance with the Reservist leave provisions will be sanctioned pursuant to existing enforcement provisions currently in place under the Code.

Contacts

André Charette
Senior Policy Analyst
Labour Standards Policy and Legislation
Labour Program
Human Resources and Skills Development Canada
165 Hôtel-de-Ville Street
Place du Portage, Phase II, 10th Floor
Gatineau, Quebec
K1A 0J2
Telephone: 819-953-7498
Email: andre.charette@hrsdc-rhdsc.gc.ca

Sarah Campbell
Policy Analyst
Labour Standards Policy and Legislation
Labour Program
Human Resources and Skills Development Canada
165 Hôtel-de-Ville Street
Place du Portage, Phase II, 10th Floor
Gatineau, Quebec
K1A 0J2
Telephone: 819-934-2947
Email: sarah.l.campbell@hrsdc-rhdsc.gc.ca

Footnote a
S.C. 2008, c. 15, s. 1

Footnote b
R.S., c. L-2

Footnote 1
C.R.C., c. 986

Footnote 2
S.C. 2008, c. 15

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