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What Canadian Employers Need to Know to Ring in 2024

In 2023, we helped Canadian employers overcome a host of new challenges across the employment law landscape. Many companies started the year with difficult cost-cutting decisions and hybrid work challenges. We’ve worked hard to keep our clients ahead of the curve on these issues, as well as address new legislation, developing case law, and other new workplace trends and developments.

In our 75-minute “quick hits” format, we’ll help Canadian in-house counsel and human resources leaders track what to keep top-of-mind for 2024.

Date: Wednesday, February 7, 2024
Time: 11:00 am to 12:15 pm ET

Our discussion will include:

  • Key legislative developments including:
    • The progress and implications of Ontario’s latest “Working for Workers” legislation
    • Implications of Pay Transparency Legislation in British Columbia and the rest of Canada
    • An update on implementing the changes imposed by French Language Legislation in Quebec and the Federal Jurisdiction
  • Significant case law developments impacting:
    • Alberta’s new “tort” of harassment
    • Discrimination based on family status in British Columbia
    • Termination provisions in Ontario
    • Changes to the substratum rule 
  • Immigration developments and lessons learned in 2023
  • Best practices for managing generative AI in the workplace 
  • Navigating key Competition Act changes
Click here to register.

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We are proud to share that Baker McKenzie was recognized as one of Greater Toronto’s Top Employers (2024). Our office was selected for its culture of inclusion, friendship and support for employee development.

Inclusion is at our core, as Ajanthana shared:

“As a global law firm, we work very closely with our colleagues around the world. Despite our size, we have a real culture of friendship.”

Please read more about this special recognition here.  

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Special thanks to our articling student Madison Bruno for contributing to this update.

On November 14, the Ontario Government introduced Bill 149, Working for Workers Four Act, 2023. If passed as expected, Bill 149 would significantly change several employment statutes, building on the Working for Workers Acts, 2021, 2022, and 2023. Key changes include: new requirements for Ontario employers to disclose pay information in job postings; a new obligation to disclose whether artificial intelligence was used during the hiring process; and it would prohibit using Canadian work experience as a job requirement.

Continue Reading Ontario Poised to Pass Major Changes to Job Posting Requirements
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We are excited to share a recent Human Resources Director article, “What HR should know about the latest Working for Workers Act” with insight from Andrew Shaw.

The article discusses the latest amendments to Ontario’s Working for Workers Act. The most significant updates include the need for employers to include remote workers in their employee count in the case of mass terminations in Ontario and higher maximum fees for violations of employee protection laws.

Click here to view the article (originally published by Human Resources Director).

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Special thanks to our articling student Ravneet Minhas for contributing to this update.

In a previous post, we discussed the legislative trend for greater pay transparency across Canada, including in British Columbia with the recent adoption of the Pay Transparency Act.

The British Columbia government has since released guidance on the application of the Act. This clarifies the requirement to include salary or wage information in all publicly advertised job postings, effective November 1, 2023.

Required Wage and Salary Information in Job Postings

To comply with the Act, employers (and third parties posting on behalf of an employer) must include the expected wage or salary or expected wage or salary range in job postings. For example:

  • $20 per hour; or
  • $40,000 to $60,000 per year.

The wage or salary range cannot be unspecified or open-ended. For example, stating that a job pays “$20-$30 per hour” would comply with the Act, while “$20 per hour and up” would not.

The Province leaves it to the employer’s discretion to decide how extensive the advertised wage or salary range may be. Further, employers are not required to include bonus pay, overtime pay, tips, or benefits in their job postings. The above requirements do not prevent an applicant from requesting a higher wage or salary than the amount advertised. Similarly, employers are free to offer an applicant a higher wage or salary than the one included in the job posting.

Continue Reading Update: New Guidance Details Requirements Under the British Columbia Pay Transparency Act
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Special thanks to our articling student Ravneet Minhas for contributing to this update.

With pervasive inflation and an uncertain job market, many Canadians are emerging from the pandemic with bolder workforce demands. For example, in the spring of 2023, federal public servants made headlines with the largest strike in Canadian history. More recently, 3,000 Metro grocery store workers went on strike across Toronto, demanding higher wages. In mid-October 2023, GM narrowly averted significant disruptions to its operations by reaching a deal with Unifor, which represents 4,300 workers in Ontario.

Employers are rightly concerned about the potential for increased union activity, which can cause significant disruptions to operations. There are many things employers can do to stay union free, but it requires treading carefully because labour laws offer extensive protections to employees’ right to unionize. One wrong step by an employer can lead to penalties, fines, and potentially automatic certification.

Understanding how quickly the 3-step certification process unfolds

The certification process formalizes the collective bargaining relationship. And, understanding how this process works and appreciating how quickly it can move forward is essential for developing an effective union avoidance strategy.

Generally speaking, the process for certification in Ontario involves three steps:

1. The Organizing Drive

In this first step, to the extent possible, the union will try to keep the organizing drive a secret. During this period, the union will typically attempt to gauge employee interest by having union representatives approach them inside or outside the workplace, as well as online, talking to them about any issues they may have with the workplace, and sharing union information with them. Most union organizing campaigns involve signing up employees as union members and collecting union membership cards. One way that unions target employers for a union drive is by obtaining the names, contact information, and/or home addresses of the employees of a certain workforce, which they use to send them propaganda.

Employers are often unaware that this step is occurring even though a union organizing drive can last for months (or, in some cases, even longer). It is important for management to have reliable sources in the workforce to advise them when a union drive is happening. Timing is critical here.

2. The Application for Certification

Once the union has garnered enough support (signed membership cards from at least 40% of the workers), it will formally apply for certification with the Ontario Labour Relations Board. Once an application is filed, employers should receive a copy of it on the same day. The application will include:

  • A written description of the proposed bargaining unit that the union seeks to represent; and
  • An estimate of the number of individuals in the unit.

Employers have just two business days to file a response, which can include, among other things, a different bargaining unit description or a different number of employees in the proposed bargaining unit. As far as the bargaining unit scope goes, the employer may disagree on the basis that the description is too broad, contrary to the physical or administrative structure of the employer or puts employees together that have vastly different skills. Experienced legal counsel can provide strategic support for these employee status disputes. Notably, once an application for certification has been made, an employer cannot alter the terms and conditions of employment.

Next, the Board will hold a hearing to determine the appropriate voting constituency to be used for a representation vote based on the descriptions proposed by the union and the employer.

3. The Certification Vote

If the union shows support of at least 40% of the employees in the bargaining unit on the day the application is filed, the Board will set a date for a representation vote.

The representation vote will be held within five business days of the application for certification. If over 50% of the employees who cast ballots vote to unionize, the union will be certified and become the workforce’s exclusive bargaining agent.

During the time between when the representation vote is scheduled, and the date it happens, both the union and employer usually run vigorous campaigns. For the employer, this could involve holding meetings at which management can listen to employee concerns, and explain how they will be addressed (a process that must be done with great care in order to avoid an unfair labour practice complaint). Management typically also provides the benefits of staying union free and the potential downside of having a union.

What Can Employers Do?

Unions typically get traction in a workforce when employees believe that:

  • Working conditions are poor;
  • They lack job security;
  • Management does not respect them; and
  • There is favouritism in the workplace.

Here are four practices that create an atmosphere where employees never feel they have to resort to a third-party to protect their welfare:

1. Create a Positive Working Environment

Employees want to feel like they are heard and valued. To do so, employers can ensure that a shared sense of purpose guides the workplace.

For example, a UN Report suggested that companies implementing Environmental, Social, and Governance principles can increase shareholder value and positively impact their reputation and brand. Moreover, various studies have shown that employees between the ages of 25-34 consider an employer’s “values” and ESG principles when considering job offers. Therefore, employers should consider adopting policies prioritizing equity, diversity and inclusion.

Employers can also minimize the likelihood of a union drive by recognizing employee efforts, teamwork and company milestones. Employers can show appreciation for employees by providing monetary incentives, such as annual salary increases, bonuses, and ensuring competitive pay practices, or offering flexible working environments (e.g. working from home arrangements, four-day work-week arrangements, flexible paid time off policies, etc.).

2. Ensure Effective and Clear Internal Communication

Clear communication is critical to ensuring a good relationship between the employer and employee. One of the main marketing techniques unions use to cater to workforces is to convince employees that the union will ensure their voices are heard and that workplace issues will be effectively brought to the attention of employers and addressed promptly. To avoid creating an environment where this sounds attractive to employees, so much so that they’re willing to pay union dues to get it, employers can take steps to ensure that their workplaces have an open-door policy and complaints are resolved in an impartial and timely manner. Employees should feel confident that their concerns will be heard and addressed.

Further, consider adopting clear guidelines on how to disseminate information on policy and procedure changes before they are enacted. This will prevent employees from feeling ambushed or shocked by any changes. 

3. Promote Transparency and Fairness

Employees should clearly understand how to resolve disputes using existing company procedures. Moreover, they should also trust that their employers will handle conflicts appropriately, fairly and promptly. To facilitate such a process, ensure that the workplace has clear policies and procedures for dispute resolution and that management is appropriately trained to resolve such issues, including harassment, bullying, discrimination, etc. Consider refresher training on these policies and available channels for redress.

4. Expose Employees to the Challenges Associated with Joining Unions

Finally, if and when a union drive occurs, employers should try to educate workers on the potential repercussions of joining a union. For example, employees should understand that they will have to pay union dues and that employee compensation would be driven by seniority rather than individual productivity. Generally, in a unionized workforce, bad workers thrive and good workers suffer.

However, while employers can talk to employees about unions, they must refrain from making any communications that may be perceived as threatening, coercive, discriminatory, or may prevent employees from making free and informed decisions with respect to union representation. Doing so violates provincial labour laws and may result in penalties, fines, and automatic certification.

Key Takeaways

For many employers, union organization is a big problem. For some, it’s fatal.

Being organized increases costs and makes the workforce more challenging to manage. Employers’ hands are tied when seeking to reward top performers or disciplining poor ones. Disciplinary issues become a nightmare to deal with because employees can file grievances for the most insignificant disciplinary issues, which requires involving legal counsel and hearings. Terminating employees without cause is practically impossible in most unionized environments. When it comes time to renegotiate a collective agreement, usually once every three years, an impasse during negotiations could lead to significant business disruptions caused by strikes and lockouts. These negotiations are often very time-consuming and add to the overhead of running a business. All of this to say, when a business is unionized, operating becomes much more expensive. And in turn, the business becomes less competitive.

The two ways a business can avoid unionization are (1) run a campaign during a union drive and defend legal claims from the union with respect to employees’ voting status, unfair labour practices, etc., and (2) maintain an environment in which employees don’t want to unionize. Obviously, option two is much less costly and risky.

Here are some additional steps employers can take to stay union free:

  • Work with counsel to prepare a five-day plan for management to follow in the event they learn union organizing is underway. Given the tight timelines at most provincial labour boards, once an application for certification is filed, there is very little time to react. Not having a plan in place for running a campaign is often the difference between success and failure. These plans contain draft messaging for the workforce to convince them against voting for a union, where and when to hold meetings, and the dos and don’ts of messaging which can lead to unfair labour practice complaints.
  • Train management on how to appropriately respond to whiffs of union organizing. This is critical. Oftentimes, workforces will become unionized because a manager says or does the wrong thing (e.g. “you will be fired if you vote for the union”). Without training, management employees are often not aware of how strict labour boards are with respect to unfair labour practices, and the serious repercussions for the employer if one is committed.
  • Take steps to keep the lines of communication between the workforce and management open, and ensure issues are dealt with in a fair and timely manner. As discussed above, the goal of this is to foster an environment where employees don’t feel they need a union. In the long-term, this is the most cost effective way of preventing unionization.

For further support in this area, please contact your Baker McKenzie employment attorney. Our Toronto team has decades of experience with domestic and international labour relations. We frequently represent employers in industrial actions, designing and implementing programs and policies to maintain positive employee relations in non-union and unionized workplaces.

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We are pleased to summarize a recent Canadian HR Reporter article, “New deadline for AODA compliance looms on horizon,” with insight from Dave Bushuev.

Organizations with 20 or more employees in Ontario as well as designated public sector organizations must confirm their ongoing compliance with the accessibility requirements under the Accessibility for Ontarians with Disabilities Act (AODA).

Employers don’t often remember they have to do it again, every three years; because three years is a long time, a lot of people in HR tend to forget about these reporting requirements. So there tends to be a bit of a frenzy in December.

Dave Bushuev, an associate at Baker McKenzie.

For the upcoming December 31, 2023 deadline, employers in Ontario must provide an update on their employee-wide training efforts around AODA that covers the accessibility customer service standard, work-related accessibility topics, the Ontario Human Rights Code, and business accessibility policies. The aim is to ensure that employees know their obligations under AODA, and how to support and assist people who may have a disability and have trouble accessing services.

Click here to view the full article (originally published by Canadian HR Reporter, a subscription may be required).

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Special thanks to our Baker McKenzie speakers Jim HollowayTheo Ling and Usman Sheikhand Industry Leaders Mark Crestohl, Senior Counsel, Accenture, Diana Drappel, Assistant General Counsel, Royal Bank of Canada, Levin Karg, Manager, Ontario Securities Commission, and Raees Nakhuda, Senior Counsel, Thomson Reuters.

Baker McKenzie is pleased to invite you to a breakfast symposium exploring the legal ramifications of the Artificial Intelligence (AI) Revolution with esteemed industry leaders from Accenture, the Royal Bank of Canada, Thomson Reuters and the Ontario Securities Commission.

The panels include Baker McKenzie AI lawyers and will address key industry developments, essential operational considerations involving AI projects, and cutting edge legal and regulatory issues impacting companies now.

This event is ideal for corporate counsel and senior leaders responsible for managing the risks and leveraging the opportunities of the AI Revolution, and for those wishing to learn more

Date:

Wednesday, October 11, 2023

Time:

8:00 am – 8:30 am | Registration and Breakfast
8:30 am – 10:30 am | Program

Location:

Baker McKenzie
181 Bay Street
Suite 2100
Toronto, ON M5J 2T3

View the invitation and click here to register.

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We are pleased to share a recent Benefits Canada article, “Newfoundland and Labrador arbitrator rules pension grievance can proceed despite late filing, citing ‘culture of acquiescence’,” with quotes from Ajanthana Anandarajah.

In this case, an arbitrator ruled that a pension grievance filed seven years beyond a collective agreement’s time limit could proceed because of the employer’s “culture of acquiescence” regarding enforcement of the limit.

Click here to view the article (originally published in Benefits Canada).

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Cyberbullying is becoming an increasingly pertinent issue in the workplace. With the growing prevalence of remote work and employee social media groups, employers face greater liability for online communications that occur outside of the office.

While the law is sparse on the topic of cyberbullying, victims may have several legal avenues to address this issue. Employers should review their workplace violence and harassment policies and procedures to ensure they align with the current state of the workplace. In fact, employers ought to consider drafting a standalone cyberbullying policy to ensure they can adequately respond to a complaint of cyberbullying.

In a webinar hosted by the Human Resources Professional Association, our Labour and Employment lawyers discuss how employers can navigate this significant workplace issue, limit their liability, and comply with legal requirements.

Please click here to view highlights from this webinar recording.