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Amended Employment Standards Act leaves workers vulnerable: MLA

Amendments to the Employment Standards Act, which received assent on March 31 bring several changes that put NWT workers in vulnerable positions, says Frame Lake MLA Kevin O'Reilly. GNWT image

Recent amendments to the Employment Standards Act risk leaving NWT workers out in the cold, says Frame Lake MLA Kevin O'Reilly.

Calling the changes “a sad day for workers' rights in the NWT” on his Facebook page, the amendments O'Reilly referred to were included in Bill 20, which received assent from Commissioner Margaret Thom on March 31.

Prior notice of terminations

One aspect of the amendments that O'Reilly says is problematic is the elimination of the requirement for advance notice of group terminations for large numbers of employees.

Under section 41 of the previous version of the act, employers who want to terminate the employment of 25 or more employees at once or during a period shorter than four weeks must notify the Employment Standards Officer and any unions involved.

The notice period becomes longer depending on higher numbers of employees.

Bill 20 still requires employers to give notice of termination, but it provides a waiver – or exceptions – to that requirement, such as in situations beyond their control like “destruction or major breakdown of machinery or equipment, climatic or economic conditions, or emergencies, including a public health emergency,” according to the standing committee on social development's report on the bill.

O'Reilly thinks some of those situations are too vague.

“Climatic or economic conditions? How that makes sense is beyond me,” he said. “It's so broad. Come on! A state of emergency or machinery breakdown – those things make sense to me. But all of that is subject to a lot of discretion. I brought forward an amendment (in the legislative assembly) to remove climatic conditions but that didn't get any support.”

Another issue he has with the waiver condition is it allows employers to apply for a waiver with the employment standards officer, shifting the responsibility away from the employer.

“The officer can decide if enough time has passed (before notice is given). But the employer doesn't have to say that in the determination letter. I think it will cause a delay and shifts the onus from the employer to the employment standards officer. I don't think it's fair,” O'Reilly said.

Flexibility for employers

In response, Employment Minister R.J. Simpson explained that part of the amendment doesn't affect protections for workers. It came about in the context of some employers across Canada potentially being unable to meet deadlines for reporting layoffs.

“Every other jurisdiction has some flexibility so that employers aren't in violation. This amendment allows the officer to exercise some discretion,” Simpson said. “For example, if all flights are cancelled, a tourism operator could lose all of its clients. Under our act, the employer would have no choice but to lay off people. They would also be guilty of violating the act. But we wanted to add that flexibility if they haven't done anything wrong and so that they won't be guilty of an offence.”

Regarding the issue of climatic conditions, the minister said it would apply only to unforeseen events and employers still must exercise due diligence.

“When we drafted that section, we looked at other legislation in Canada. It's very broad because we can't predict what will happen to cause these conditions,” said Simpson. “This (legislation) is new to the NWT but not to the rest of Canada.”

Unpaid emergency leave

The amended act also adds a provision allowing for unpaid emergency leave if workers are unable to perform their duties in an emergency, such as a local, health or national emergency.

The provision helps the NWT meet its commitments to the federal government under the Safe Restart Agreement and allows NWT workers access to the recovery benefits under the federal Covid-19 Response Measures Act, the committee report said.

Through the Safe Restart Agreement, the NWT received $14.5 million in September 2020 to support health-care systems and essential services.

Self-isolation concerns

While O'Reilly recognizes a positive side to that provision – in that a worker's job has to be retained and protected while they're away from work – he's also concerned it removes an incentive to encourage self-isolation during the Covid-19 pandemic.

“There are other jurisdictions that have found ways to provide for more generous sick leave, like the Yukon. I think we need to be trying to find some incentive for people to do the right thing with sick leave,” he said.

NWT workers who must take emergency leave won't be completely left in the lurch for the time being, because the Canada Emergency Response Benefit (CERB) allows them to access income assistance while they're away from work.

Workers need security: O'Reilly

But O'Reilly said the current arrangement isn't in the public interest because CERB and the pandemic will eventually end and workers should have a safety net in emergencies.

The Union of Northern Workers (UNW) also takes issue with the unpaid leave portion of the amendment.

The pandemic has already demonstrated the financial hardships that many workers face when they can't work because of emergency measures like self-isolation, said UNW president Todd Parsons.

“Failing to provide paid leave to workers could put vulnerable low-wage workers in a position where they feel forced to choose between staying home or buying groceries,” Parsons said. “If we want to ensure that everyone complies with the public health orders, we can’t create a situation where some workers are financially disadvantaged for doing so.”

In its submissions to the standing committee reviewing the amendments, the Status of Women Council also called for emergency paid leave for employees.

Simpson said that federal assistance will support workers who have to take emergency leave, and adding paid leave to the amendment would duplicate what the federal government already provides.

“Well, there was never paid (emergency) leave,” he said. “In the future, if the assembly wants to pursue that we could look at it. The amendment was an immediate support amid Covid and provides access to federal funding.”

O'Reilly wishes the changes to the act had turned out differently but said he would ask for an update on the enforcement of the amendments further down the road.

“I'll see how many employers got this waiver. I think there needs to be some public reporting on what happens with the Employment Standards Act. There's no public reporting of any of this,” he said.