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Breakfast for the Mind Employment and Labour Spring 2015 Seminar
May 28, 2015
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Adrian Elmslie, Emcee
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Speakers
Adrian C. Elmslie Partner D + 780-423-7364 [email protected]
Fausto Franceschi Partner D + 780-423-7348 [email protected]
Scott Sweatman Partner D + 604-433-7114 [email protected]
Cristina Wendel Partner D + 780-423-7353 [email protected]
Claude Marchessault Counsel D +604-648-6517 [email protected]
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Fausto Franceschi
Surviving the downturn: Managing your workforce in recessionary times
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Introduction
• Alberta employers are hit hard by decline in oil prices
• Energy sector has seen significant down-sizing
• Trickle down effect - other industries have been and will be impacted
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Introduction
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• According to Saturday’s Globe and Mail: • Alberta Personal Insolvencies increased 6.5% during the six months ended
February, 2015 (the national rate climbed 1.2%) • 38,800 people receiving EI benefits in March - up 8.9% from previous month
(the national average is up 1.1%)
• Unless there is a dramatic increase in the price of oil, expect to see continued impact across many industry sectors
• Investor uncertainty due to transition to NDP government
Issues and opportunities for employers
• The need to cut expenses • Labour cost is usually one of, if not the highest, expense item
• Competition from ex-employees
• Potential opportunities
• What might we see from the NDP government?
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A. Options to consider in downsizing the workforce
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• Terminations due to a decline in business conditions does not constitute cause
• Importance of having properly drafted employment agreements and offer letters!
Options on Termination • Lump sum payouts
• Salary continuance
1. Terminations without cause
A. Options to consider in downsizing the workforce
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• Working notice
• Combination
• Section 137 of the Employment Standards Code (Alberta)
• “If an employer intends to terminate the employment of 50 or more
employees at a single location within a 4 week period, the employer must give the Minister 4 weeks’ written notice of its intention to do so, specifying the number of employees whose employment will be terminated and the effective date of the terminations, unless the employees are employed on a seasonal basis or for a definite term.”
1. Terminations without cause
A. Options to consider in downsizing the workforce
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• Used when employer wishes to maintain the employment relationship • 59 days • On 60th day the employment terminates and employer must pay the employee
termination pay under the Code unless: • i) By agreement the employer pays the employee wages or an amount instead of wages, in which
case the employment terminates and termination pay is payable when the agreement ends • ii) The employer pays for continued benefits, in which case the employment terminates and
termination pay is payable when the payments cease • iii) Collective agreement is in place, in which case employment ends and termination pay is payable
when recall rights under the collective agreement expire
2. Temporary lay-offs under the Employment Standards Code (Alberta) [sections 62-64]
A. Options to consider in downsizing the workforce
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• No statutory termination pay required to be paid if employee fails to return to work within 7 consecutive days after a written request is provided (collective agreement may contain different requirements)
• Not much use during the downturn
• Used more if there is time lag between projects
2. Temporary lay-offs under the Employment Standards Code (Alberta) [sections 62-64]
A. Options to consider in downsizing the workforce
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• Reduction in pay • Reduction in hours • Reduction in work days • Change in duties
• Raises constructive dismissal issues • An employee who is constructively dismissed may resign and sue for pay and
benefits in lieu of notice
3. Altering employment terms
A. Options to consider in downsizing the workforce
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• Two tests for constructive dismissal
Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10
Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10
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• Determine if the employer’s unilateral change is a breach of an express or implied term of the employment contract; and
• If there is a breach, determine whether the breach was sufficiently serious so as to constitute a constructive dismissal. Would a “reasonable person” in the same situation as the employee feel that the essential terms of the employment contract were being substantially changed?
Test 1: “Breach of Contract” test
Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10
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• Employer’s cumulative past acts reasonably show that it no longer intends to be bound by the contract
• The “breach of contract” test will apply when an employer decides to make unilateral changes to fundamental terms of the employment contract
Test 2: “Cumulative Past Acts” test
A. Options to consider in downsizing the workforce
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• Can implement changes if provide appropriate notice
• Proper communication is the key to reducing your risk of constructive dismissal claims when implementing unilateral changes with little or no notice
• Unless the changes are humiliating or embarrassing to the employee, he or she must continue to work in mitigation of damages [Evans v. Teamsters Local Union No. 31, 2008 SCC 20]
3. Altering employment terms
A. Options to consider in downsizing the workforce
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• Collective Agreement terms
• Lay-off provisions
• Seniority
• Termination provisions
4. Unionized employees
B. Competition from ex-employees
• Departing employees might go to the competition or set up business for themselves - items to consider: • Ensure non-solicitation agreements are in place • Ensure non-competition agreements are in place • Identify fiduciary employees • Protect confidential information • May need to “remind” employees of their ongoing obligations and monitor their
post-departure activities
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C. Opportunities
• Operate leaner • CN privatized in 1995 and went from 80,000 employees to 18,000 employees
• Analyze your workforce • Time to “go jerk-free” • Time to get rid of under-performers
• Upgrade your workforce • There are excellent people who are now available – go get them!
• Update your employment agreements
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D. Alberta goes NDP
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• $15 minimum wage by 2018
• Increase in statutory notice period?
• Easier union certification rules – elimination of secret ballot vote in favour of membership evidence?
• Automatic certification where there is an unfair labour practice finding?
• Restrictions on employer free speech in the context of union organizing campaigns?
• First contract arbitration?
What to expect?
Conclusion
• These are interesting times to be in HR in Alberta!
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Cristina Wendel
Effective disaster response: Occupational health and safety incidents
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“Death of Alberta teen under investigation by Occupational Health and Safety” CTV, July 21, 2014
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“Alberta records 8th workplace death in 6 weeks” Global, December 16, 2014
“Occupational Health and Safety investigating 4 deaths in last week” CBC, November 28, 2014 “Alberta worker dies after being pulled into crusher”
OHS Canada, August 5, 2014
“Alberta excavator accident kills young racecar driver” OHS Canada, March 25, 2014 “One dead in second Calgary workplace
fatality this week” Calgary Herald, November 20, 2014
Effective disaster response (OHS) - overview
• Jurisdiction • federal and provincial legislation
• Responding to a workplace incident
• duties and responsibilities
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Jurisdiction – federal or provincial?
• Federal: Canada Labour Code, Part II – Occupational Heath and Safety
• Alberta: Occupational Heath and Safety Act, Regulation and Code (2009)
• Both: Criminal Code – Bill C-45 (section 217.1)
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Resolving questions of jurisdiction – why?
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• Legislation defines the applicable duties
• Legislation sets out the reporting and investigation requirements
• Legislation determines the applicable limitation period
• Legislation will determine the applicable offences and appropriate
penalties
Why is jurisdiction important?
Resolving questions of jurisdiction – how?
• How to determine whether a matter falls within the federal or provincial jurisdiction? • Will depend on the particular circumstances
• Most will fall within provincial jurisdiction
• Exceptions:
• Federal work, undertaking or business • Question of degree
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• Emergency response – shut down machinery, 911, first aid, evacuation
• Preserve the scene – except where necessary to: • Alberta OHS legislation:
• Attend to persons injured or killed • Prevent further injuries • Protect property endangered as a result of the accident
• Canada Labour Code: • Save a life, prevent injury or relieve human suffering in the vicinity • Maintain an essential public service • Prevent unnecessary damage to loss of property
• Preserve evidence – spoilation, litigation hold
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Responding to a workplace incident – reporting obligations
Responding to a workplace incident – reporting obligations
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• Section 15.5 – employer must report to Health and Safety Officer (phone or fax) within 24 hours of any accident, occupational disease or other hazardous occurrence resulting in: • Death of employee • Disabling injury to 2 or more employees • Loss by an employee of a body member or part thereof, or complete loss of usefulness • Permanent impairment of a body function of an employee • Explosion • Damage to a boiler or pressure vessel resulting in fire or rupture** • Any damage to an elevating device rendering it unserviceable, or free fall of an elevating device**
**These two also require that a written record describing the occurrence, its causes and corrective measures, be prepared within 72 hours and sent to the workplace health and safety committee or representative without delay
• Section 15.7 – employer must keep a record of each minor injury affecting any employee in the course of employment which includes the details and causes
Canada Occupational Health and Safety Regulations, Part XV:
Responding to a workplace incident – reporting obligations
• Section 15.8 – employer must submit a report to a Health and Safety Officer within 14 days for hazardous occurrences resulting in: • Disabling injury to an employee • Electric shock, toxic atmosphere or oxygen deficient atmosphere that caused an employee to lose
consciousness • Implementation of rescue, revival or similar emergency procedures • Fire or explosion
http://www.servicecanada.gc.ca/eforms/forms/esdc-lab1070(2014-07-003)e.pdf • Report must be submitted to work place health and safety committee or representative without delay
• Section 15.10 – annual reports to Minister • Annual Hazardous Occurrence Report:
http://www.servicecanada.gc.ca/eforms/forms/esdc-nhq-lab1009(2014-12-006)e.pdf • Work Place Committee Report: http://www.servicecanada.gc.ca/eforms/forms/esdc-lab1058(2006-01-004)e.pdf
• Section 15.11 – all reports and records must be kept for 10 years
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Responding to a workplace incident – reporting obligations
• Canada Labour Code: • Section 126(1)(h) – employees must report every workplace accident or
occurrence causing injury
• Alberta OHS legislation: • Section 18(1) - serious injuries and accidents must be reported to OHS
• Results in death • Results in worker being hospitalized for more than 2 days • Unplanned or uncontrolled explosion, fire or flood causing, or potentially causing a
serious injury • Collapse or upset of a crane, derrick or hoist • Collapse or failure of any component of a building or structure necessary for the
structural integrity
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Responding to a workplace incident – reporting obligations
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• WCB reporting requirements
• Mine or mine site – additional reporting requirements under OHS
Code • Report fires to local fire department or Office of the Fire
Commissioner • Report incidents involving gas equipment to the Safety Codes Duty
Officer
• Federal – aircraft, rail and marine
• Motor vehicle accidents
Additional reporting requirements in some instances:
Responding to a workplace incident – statutory investigations
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• Section 15.4 – for all accidents, occupational diseases and other hazardous occurrences affecting any employee in the course of employment, the employer must, without delay:
• Appoint a qualified person to investigate
• Notify the work place health and safety committee or representative
• Take necessary measures to prevent a recurrence
Canada Occupational Health and Safety Regulations, Part XV:
Responding to a workplace incident – statutory investigations
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• Includes serious injuries and accidents which must be reported under section 18(1) but also any other serious injury or any other accident that has the potential of causing serious injury
• Must prepare report • Outline circumstances of incident • Outline corrective action, if any • Ensure copy of report available for inspection • Retain report for 2 years after incident
Section 18(3) OHS Act (Alberta) – serious injuries and accidents must be investigated
Responding to a workplace incident – internal investigations
• Not the same as the section 18 report
• Legislative compliance versus business purposes
• Evidentiary issues
• Section 18 report is inadmissible as evidence at trial
• Maintain privilege over internal investigation report
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Responding to a workplace incident – government investigations
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• Section 141(4) – OHS must investigate every workplace death
• Section 142 – duty to assist OHS officials
• Section 143 – obstructing or providing false statements to OHS officials prohibited
• Section 143.1 – preventing employees from providing information to OHS officials prohibited
• Section 144 – evidence in civil or administrative proceedings precluded
Canada Labour Code:
Responding to a workplace incident – government investigations
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• Section 19(1) - OHS officer may attend if an accident occurs at a worksite and may make any inquiries considered necessary
• Section 19(2) - Everyone present at the accident or who has information must cooperate and provide information to officer
• Section 19(3) - Officer may seize or take samples
• Section 19(5) - Witness statements are not admissible at trial
• Section 40.4 – Interfering with or hindering officer prohibited
Alberta OHS Act:
Workplace incidents – best practices
• Ensure proper policies and procedures are in place, known and followed
• Ensure the system is working – observe, monitor, inspect, audit
• Enforce non-compliance – discipline, training, adjust policies
• Contractors – proper contractual wording, monitor
• Learn from near misses
• Ensure known hazards are addressed
• Don’t rely solely on industry standards
• Don’t be afraid to implement remedial steps post-incident
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Coffee Break Employment and Labour Spring 2015 Seminar
May 28, 2015
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Breakfast for the Mind Employment and Labour Spring 2015 Seminar
May 28, 2015
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Claude Marchessault Scott Sweatman
Overview of key pension and benefit issues facing Canadian employers
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Key Pension & Benefit Issues Facing Employers
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• Legislative Reform in Alberta and British Columbia
• Pension De-Risking Strategies
• Other Non-Pension Benefit Liabilities
Topics
Legislative Reform in Alberta and British Columbia
“Getting Our Acts Together”
• Alberta – New EPPA – In Force Sept. 1, 2014 • B.C. – New PBSA – In Force Sept. 30, 2015 • High Degree of Harmonization between EPPA and PBSA • Compliance amendments - EPPA and PBSA (Dec. 31/15)
JEPPS Final Report
(Nov. ’08)
• Governance Policy Requirement • Funding Policy Requirement • Solvency Reserve Accounts • Target Benefit Plans
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Major Adopted JEPPS Report Recommendations
Governance Policy Requirement
Funding Policy Requirement
Solvency Reserve Accounts
Target Benefit Plans
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Pension De-Risking Strategies
Buy-in and Buy-out Annuities (Canadian Wheat Board)
Longevity Insurance (Bell Canada)
Investment Strategies (Liability Matching /Derivatives)
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Other Non-Pension Benefit Liabilities
Accounting & Disclosure Problems
Health & Welfare Trusts (1986 - Interpretation Bulletin IT-85R2 )
Employee Life & Health Trusts (2010 - s. 144.1 Income Tax Act)
B.C. Registered Captive Insurance Companies
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Dentons Canada LLP 2900 Manulife Place 10180 - 101 Street Edmonton, Alberta T5J 3V5 Canada
Thank you
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Speakers
Adrian C. Elmslie Partner D + 780-423-7364 [email protected]
Fausto Franceschi Partner D + 780-423-7348 [email protected]
Scott Sweatman Partner D + 604-433-7114 [email protected]
Cristina Wendel Partner D + 780-423-7353 [email protected]
Claude Marchessault Counsel D +604-648-6517 [email protected]
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