First Nations and band councils will need to amend employment policies to address legislative changes
On December 18, 2018, Bill C-86 (the “Bill”), which includes amendments to the Canada Labour Code (the “Code”), received royal assent. Much like many of the provinces, the federal government undertook a review of the Code in an effort to “modernize” the legislation. Some of these amendments will be in effect on September 1, 2019, while others will be in effect on a future date that has not been determined.
Although the Supreme Court of Canada’s decision in NIL/TU,O Child and Family Services Society v. BC Government and Service Employees’ Union,  2 S.C.R. 696 narrowed the application of the Code within First Nation and band council workplaces, many employees of First Nations and band councils continue to be governed by the Code and will see their employment significantly impacted by these amendments.
Although there will be a number of amendments to the Code arising from the Bill, the issues identified within this article highlight the amendments that are likely to impact First Nations and band councils in particular.
Effective September 2019
Presently, in order for an employee to be eligible for certain types of leave (e.g. maternity, parental, critical illness) that are provided for pursuant to the Code and to be eligible for statutory holiday pay, employees are required to have completed a minimum period of service. The Bill removes the minimum required period of service.
The Bill provides for an increase in employee vacation entitlement and pay. Employees will now be eligible to receive three weeks vacation (or 6%) after completing five years of service (previously six years). The Bill introduces an additional level of vacation entitlement that does not currently exist for employees with more than 10 years of service. Employees with at least 10 years of service are entitled to four weeks vacation (or 8%).
Employees are permitted to have unpaid leave for an unlimited period of time to be a witness in court or participate in activities related to jury duty.
In Effect on a Future Date
The notice or pay in lieu of notice of termination of employment that is provided to federally-regulated employees will now be one week per year of service to a maximum of eight weeks for eight years of service.
The Bill includes a new Pay Equity Act, which requires federally-regulated employers with 10 employees or more to develop a pay equity plan to examine and address any pay inequity that may exist among employees of the same job class whether it is due to gender or the status of the employee (e.g. temporary worker).
The Bill provides employees with unpaid personal leave (personal sick leave, tending to the health or education issues of a family member) of up to five days and if the employee has completed three months of service, the first three days will be paid leave.
Upon completing three years of service, employees will be eligible for paid leave of up to five days to address issues related to family violence.
Recommended Next Steps
While the timeframe for the implementation of some of the amendments has not been determined, federally-regulated employers should be prepared to implement the changes required by the Bill. It is a great opportunity for First Nations and band councils to undertake a review of their employment policies and practices to ensure they meet or exceed the minimum standards as set out in the Code.
We are in a time where there is growing concern about mental wellness. Improving the protections for employees is an important component of wellness in the workplace. It is important for employees to be provided with leave to attend to the personal issues that arise, so that they are more focused and productive when they report to work.
Chaslynn Gillanders is Nisga’a and practises law in Vancouver at the law firm of Callison & Hanna.