On the radar for federally regulated employers in the private sector are a number of hot and important topics. These include an increase to the minimum wage, in-the-works changes to the COVID-19-related leave, and new discussions about gig workers and how they fit – or may be able fit –  in the framework of the Canada Labour Code (Code).

Increase to the minimum wage

On December 29, 2021, employers will see the federal minimum wage increase to $15 per hour. What’s more, the amendments to the Code provide that where provincial or territorial minimum wages are higher, that wage will prevail. So, for example, federally regulated employers in British Columbia and the Yukon will be required to pay employees an additional twenty cents per hour ($15.20). In Nunavut, this increase in wage will rise to $16. And, every April 1, the minimum wage will be adjusted and rounded up to the nearest $0.05, based on Canada’s Consumer Price Index for the preceding calendar year.

Repealed, but soon-to-be extended COVID-19-related leave

On November 20, 2021, the leave related to COVID-19 was repealed. However, the federal Labour Program has advised that the government is proposing to reinstate the leave and extend it until May 7, 2022, aligning with the proposed extension to the Canada Recovery Sickness Benefit and the Canada Recovery Caregiving Benefit.

The government is also proposing to increase the maximum duration of these benefits by two weeks and therefore, corresponding changes to the COVID-19-related leave would be made to ensure continued alignment.

However, we are awaiting for the government to enact these changes, and the timeline for that is not yet clear, though it can be expected that the amending legislation[1] may pass this year. In the meantime, the Labour Program has advised that employees do have access to other leaves, like:

  • Personal leave: Up to five days, three of which are paid by the employer if the employee has completed three continuous months of employment. Employees can take this leave for various reasons, including to treat an illness or injury, to carry out responsibilities related to the health or care of any of their family members, or in the event of an urgent situation.
  • Medical Leave: Up to 17 weeks of unpaid leave, which can be used if employees are unable to work due to illness, injury, organ donation surgery, or medical appointments during working hours. Employees are also eligible to take up to 16 weeks of unpaid leave if they are unable to work due to quarantine.

Gig workers

About 8%-10% of all Canadian workers work in the gig economy, and that number is expected to rise in coming years.[2] With this in mind, employers should note that earlier this year, the Labour Program engaged with a number of stakeholders and the public to “deepen its understanding of the opportunities and challenges faced by workers in the gig economy and the extent to which they are in need of greater labour protections.”

Areas in the federal jurisdiction that could be particularly affected are road transportation, postal and courier services, remote gig work, and local service peer-to-peer platform work in the territories. Indeed, gig workers in the federal sphere can include:

  • Independent contractors in the courier and postal services, some of whom may work through digital platforms;
  • Long-haul truck drivers who work through digital freight brokers; and
  • Workers who provide services to federally regulated employers through freelancing and micro-tasking platforms such as voice actors, freelance journalists, translators, and IT professionals in the telecommunication or broadcasting sectors.

Historically, gig workers have generally (but not always) been classified as independent contractors. Currently, only “employees” are safeguarded under Parts II and III of the Code, which means that contractors are generally excluded from federal health and safety, and labour standards protections. Under Part I, dependent contractors – which fall somewhere between a traditionally defined “employee” and “independent contractor” – are protected, meaning that some contractors may benefit from industrial relations rights, such as the right to unionize.

Further, it should be noted that the Code was amended this past January to prohibit misclassification and puts the onus on the employer to establish that a person who files a complaint with the Labour Program is not an employee as understood under the legislation. This can put employers in a rather difficult position because the nature of the working relationship with gig workers is not always well defined. Employers should therefore be cautious when classifying a gig worker, as the lines between “employee” and “independent contractor” can easily blur.

It is not yet clear when or if legislation may be passed to broaden the Code’s protections to include gig workers. However, the government has made it understood that it is within its purview to extend such protections to those who work in the gig economy.

There will certainly be more to come on this important issue. More information on this topic is available from the Labour Program by clicking here. In addition, for further discussion about gig workers in Canada and globally, please visit Norton Rose Fulbright’s Doing business in the gig economy: A global guide for employers.

Footnotes

[1] See: Bill C-2, An Act to provide further support in response to COVID-19, which passed first reading in the House of Commons on November 24. It is currently at second reading.

[2] Federal Labour Program, Developing Labour Protections for Gig Workers Discussion Paper (April 2021, Ottawa).

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