New federal labour rules aim to curb workplace sexual harassment

Canada is overhauling its Labour Code, including strict regulations on workplace sexual misconduct and violence.

Other changes, some of which are coming into force Sept. 1 and others later, include changes intended to allow for more flexible work arrangements, increased personal leave-of-absences, providing notice for employee scheduling changes, increased vacation and equal pay for employees from temp agencies or who are part-time, casual, contract or seasonal.

The amendments to the labour code include changes to occupational health and safety section that focus on workplace sexual harassment and violence.

Two $100-million class action lawsuits against the RCMP and a $900-million settlement paid by the Department of National defence – all for sexual misconduct – likely spurred the government to act, says George Vassos, partner at global labour and employment law firm Littler Mendelson.

“Those [dollar amounts] are staggering numbers, by Canadian standards,” Vassos says. “It's not surprising that the federal government has moved to do more in that area; More legal obligations, more training, encouraging more awareness in the workplace of these types of issues.”

Workplace sexual harassment prevention has broad political support

In a backgrounder published in the Canada Gazette, the government cites a 2018 Angus Reid poll which found 52 per cent of Canadian woman say they’ve been sexually harassed in the workplace. Emphasizing the problem, the government said studies show that “up to 80 per cent” of occurrences of sexual harassment go unreported, often out of fear of retribution, loss of job and job security and lack of support from employers. According to the backgrounder, change was necessary because the current legal framework was “fragmented and not designed to adequately address” sexual harassment and sexual violence.

The government estimates training and other associated costs of their workplace harassment and violence prevention regulations to cost employers $840 million over the next 10 years but will “in turn economically benefit the workplace through a decrease in absenteeism, job burnout, disability payments, lost work time and litigation costs.”

With Canadians heading to the polls in October, Vassos sees the looming federal election as a major influence on the changes.  The sexual harassment and violence regulations, Vassos says, had support from all political parties and so will likely be in force, whatever happens in the fall federal election.

The changes to workplace sexual harassment and violence regulations were part of a larger change meant to adapt workplaces to the modern, often precarious, economy, Vassos says.

Part of wide-ranging labour and employment law overhaul

The changes were contained in four 2017 and 2018 omnibus bills, three budget implementation acts and an amendment of the Canada Labour Code.

The modifications result from consultations the government carried out in 2017 and 2018. The exploration into federally regulated workplace was engendered by the rise of the gig economy, globalization, technological change and all the precariousness, low pay and lack of benefits and labour-standards protections that has gone with it, said the report from Employment and Social Development Canada.

To gain a perspective “on what a robust and modern set of federal labour standards should look like,” the government spoke with unions, labour organizations, employers and employer organizations, academics, advocacy groups and regular Canadians.

Already the law in most provinces, the federal changes mandate allowing up to 10 days of family violence leave, five of which need to be paid, if the employee has worked the job longer than three months, says Vassos. Three months of service is also required for Aboriginal practices leave, where employees will be able to take time off for traditional Aboriginal practices, such as hunting and fishing, he says. Employers will have to give at least 96-hours notice for a scheduling change and more vacation time is mandated. Previously, employees would get two weeks and three weeks after six years. They now get three weeks after five years and four weeks of vacation after 10 years.

The leaves of absence being enhanced by the new changes are in line with how governments are moving on the provincial level, says Vassos.

“Not only are they taking existing leaves and expanding them,” he says. “They're also introducing new leaves.”

Vassos represents employers and says, from their perspective, most of the changes mean greater costs and more operational requirements.

“It just means more to contend with for employers. So I mean, in a nutshell, what's happening is the workplace, the work world, the work laws, everything's getting more complicated all the time,” Vassos says.

Apart from changes already enacted or imminent, Vassos says the government has an expert panel convened still studying the issues. Vassos expects to see changes regarding the ability for employees to disconnect and not be hounded by emails during evenings and weekends.

“Whether its global competition, or the gig economy or the rise of a more precarious workforce,” Vassos says. “It's a brave new world out there.”

Editor's Note: An earlier version of this article incorrectly stated certain labour code changes would be in force Sept. 1.