Soumission

Flexible Labour Standards for the Modern, Sophisticated Workforce

Table of Contents

Introduction

Flexibility

Making Ends Meet

Work-Life Conflict

Part III of the Canada Labour Code: Education

Labour Program: Accountability, Clarity and Visibility

Time to Update

Summary of Recommendations

Introduction

As Canada's leading scheduled, domestic and trans-border, low-cost airline, we have a direct interest in the development and administration of Part III of the Canada Labour Code (the "Code") legislation. Non-union organizations have difficulty applying standard industry practices to their employee groups because of the restrictive requirements of the Code. Industry specific labour standards are needed to address unique concerns and challenges faced by like businesses. Occupational and or business-type labour standards may not be beneficial because demands within occupational groups, though sometimes similar, are often distinctive due to industry specific demands.

Based on our experience in the airline industry, for example, office, professional and/or standard eight (8) hour per day, forty (40) hour per week employees find the Code's provisions neither protective nor beneficial to their rights. These employees are not necessarily "vulnerable" and are capable of identifying and distinguishing between purely monetary benefits and benefits that affect both work and home life thereby being seen, in their view, to be more favourable than monetary compensation.

Flexibility

Current Hours of Work provisions within the Code do not provide employers or employees with any flexibility to manage and balance their work schedules with their personal lives. In our experience, employees like to be able to work more hours on one day to leave early on another day within the same week without having to be paid overtime for hours beyond eight (8) in a day as per Section 169.1. As a result, overtime payable after forty (40) hours a week, without the daily maximum of eight (8) hours would be seen, by employees, as being more favourable.

Averaging (Section 169.2) provides the flexibility that employers and employees are looking for when attempting to achieve work and home life balance however circumstances in most departments do not satisfy the Code's requirements for implementing averaging. The criteria, as set out in 1965, is not applicable to most work situations in 2005 yet the need for averaging both from an employer and employee perspective has never been greater. Our employees repeatedly request for the implementation of an averaging-type schedule as they find the schedule flexibility more favourable than that of the monetary compensation imposed by rigid schedules, however, the required ad hoc nature of the averaging schedule is not viewed as being beneficial or more favourable.

Modified (Section 170) schedules are not perceived to be flexible from either the employee or employer perspective because of their inherent rigidity. It is beneficial for employees to know exactly what their schedule is from week to week and month to month, therefore, Code provisions and regulations should encourage employers to implement consistent and repeating rotations. However, by forcing repeating and predictable rotations into modified schedules rather than averaging, it negates the benefits by neither allowing the employer to make schedule changes (that affect the items voted on) to meet operational requirements, nor the employee from making changes to the schedule that accommodate changes or needs in their personal lives. A schedule that cannot be changed or amended without a further 70% vote in favour of the changes is not beneficial in a growing, dynamic workplace.

There is a need for flexibility within Division I, Part III of the Code. A new option that encompasses all of the employee and employer benefits offered under standard, averaging and modified schedules would better meet the needs of modern day businesses. Employees want schedule flexibility from their employers and employers want to meet their employee's needs, in addition to meeting operational requirements, without it unnecessarily impacting their bottom line. Employees appreciate consistent, predictable schedules and/or hours of work which allow them to plan their home lives and meet their work commitments, but also require flexibility to find the work/home life balance. This could be accomplished by broadening the regulations surrounding averaging schedules and recognizing that employees now see benefits other than monetary compensation as being important. This will afford employers the opportunity to accommodate the lifestyle requirements of the modern, diverse workforce.

Another possible addition to the hours of work options under the Code would be to provide regulations that would allow employees to vote in favour of implementing a custom and specific averaging-type hours of work schedule or agreement that meets their personal and departmental needs. A department such as Finance may vote in a four week averaging period to accommodate regularly occurring events like month end, year end, payroll runs, etc. whereas a department with heavier operational demands may be required to schedule on a calendar month basis, to accommodate both the flow of operations and the requirements imposed by governing bodies such as Transport Canada, and therefore average their hours based on that criteria rather than a number of "weeks". This allows the employees to work in excess of eight hours a day when required but then leave early at other times as they are able to, or attend to personal matters without it costing the company additional labour dollars.

Recommendations:

1. Part III of the Code must provide additional, flexible schedule and/or hours of work provisions that employers and employees can use to create mutually beneficial schedules allowing employers to remain competitive.
2. Section 169.2 and related regulations should have eligibility and requirements expanded and broadened for implementing an averaging schedule.
3. Division I in Part III of the Canada Labour Code needs to provide minimum standards while providing options for employees to work flexible weeks, managing their hours over forty (40) in a week.

Making Ends Meet

Increasingly, people find it necessary to work more than one job. When a person holds two jobs, whether full or part time, at separate employers, each can schedule and operate independently provided there isn't a conflict with work hours. Neither workplace is responsible for accounting for hours scheduled or worked with the other employer. This means that a person could work forty (40) hours at one position and then work additional hours, conceivably up to forty (40), at a second employer and be paid straight time, at different rates of pay, by each employer for up to eighty (80) hours per week.

In our business, many employees, whether full or part time, have expressed the desire to work supplemental hours in another department within our company. An example would be a Flight Attendant who flies full time but would like to make additional money on his/her days off by working in our airports as a Customer Service Agent. As the employer, we would like to support our employees in finding a suitable part time job within our organization and thereby not have to hire externally for positions that our internal employees are interested in, but it becomes cost prohibitive when we are required, by the Code, to compensate these employees at time and a half for all hours beyond their normal, full time standard hours.

Similarly, we have many frontline employees who would like to have the choice to pick up additional hours from their colleagues at straight time rather than working at a part time job. These "shift-trades" or "shift pick-ups" are initiated and driven by the employees themselves and not deemed to be operationally required and subsequently the employer is not requiring or permitting the employee to work in excess of the standard hours of work, but the employee simply wishes to pick up the hours in order to earn additional money. Currently, employers are unable to allow employees to pick up these additional hours due to the significant increase to labour costs because most of that time is in excess of standard hours and therefore requires overtime pay under current Code regulations.

Recommendations:

4. The federal government should provide provisions and regulations that allow employees and employers to treat multiple positions held in different departments within the same company as being separate and therefore hours are payable at straight time
5. Part III of the Code should allow employees the right to choose to pick-up and/or trade shifts with other employees, over and above their standard hours of work, to be paid at straight time.

Work – Life Conflict

Currently, the Code prevents most employees from being able to choose to work anything other than a maximum of eight (8) hours each day and forty (40) hours each week before overtime payout is required, as per Section 169.1, unless they commit to an equally strict modified schedule as per Section 170. In the majority of cases, an averaging-type schedule would be ideal however few departments and employee groups or classes meet the Code's requirements in respect to averaging.

Even though employees want and need flexibility within their schedules, employers are limited in their ability to provide the employee desired flexibility because, under Section 169.1 of the Code, standard hours of work require that overtime be paid out whenever employees work beyond eight (8) hours in a day and forty (40) hours in a week, and modified schedules, as per Section 170, require a long-term commitment from both the employer and employee that may not be reasonable and certainly does not provide any additional flexibility. Both standard and modified schedules greatly and unnecessarily increase the employers' labour costs and therefore become cost-prohibitive.

Rigid schedules and hours of work create stress for office employees because individuals are not able to exercise any control over their work lives. Stress decreases productivity and job satisfaction and though the employer may well recognize the need for change, they are restricted by the Code in what they can do to work with employees to compromise and find balance.

Additionally, there is an employee perception that they "need to put in their hours". Employers can not adopt a task-based schedule requirement for their office employees because the Code does not provide any flexibility in this regard. Overtime must be paid at time and a half whenever the employee works beyond eight (8) hours in a day and therefore employers can not be expected to incur additional labour costs by allowing employees to leave early, with pay, when their tasks and job responsibilities are compete.

By empowering employees to manage their own time, efficiency and productivity increase in part because employees are able to find their own balance between meeting personal work and home responsibilities. Employees could work the hours necessary to complete their tasks and leave earlier when required or able (see example 3 below) with the employer being responsible for paying overtime beyond forty (40) hours in a week or whatever timeframe is dictated by a flexible, averaging-type schedule.

Example 1

*Currently under Section 169.1 of the Code, this employee, who had to leave to early Tuesday in order to attend to a personal matter, would either have to come back to work later the same day, on Saturday to make up their hours, or take four (4) hours of unpaid time because he/she can not work beyond eight (8) hours a day during the rest of the week without the employer being required to pay time and a half for those hours.

Example 2

*A more favourable and flexible option for both the employee and the employer would have the provisions within the Code support the employees ability and right to choose to work beyond eight (8) hours in a day with overtime being payable only after forty (40) hours in the week to make up the time for leaving early on the Tuesday.

*Example 3

*Employees have indicated that they find it more favourable and beneficial to be able to self-manage their time over a period of two (2) or more weeks with four (4) weeks being the most common employee request. This empowers the employees to control their work schedules and balance their work and home lives while the employer continues to be responsible for overtime payout after a reasonable time, in this example, any hours over 160 hours in four (4) weeks.

The Code's current hours of work provisions generally and Section 169.1 specifically, as they apply to office employees in addition to some frontline employees (like a call centre which is scheduled based on a standard work week), hinders employers and employees working together to find and promote a work-life balance.

The lack of flexible scheduling options negatively affects both employers and employees by creating the need for rigid schedule management and micro-managing to minimize inflated labour costs while attempting to remain as flexible as possible under the Code. The employer's inability to support employee's self-management, due to current hours of work provisions, negatively affects employees by forcing them to "put in their time" every day. Incentives like employee self-managed, task based schedules encourages employees to work more efficiently. Less time wasted by idle time increases productivity and allows employees to spend less (unproductive) time at work.

Division I of the Code in general, and Section 169.2 specifically, is out of date. Averaging is the most flexible of the scheduling options provided under the Code however only a small percentage of departments and employee groups looking for that level of flexibility satisfy the requirements of averaging.

Additionally, the Code's definition of a week in Section 166 and the requirement that averaging occur over a period of full weeks serves to further hinder the ability of employers to provide employees with flexibility that supports and does not impair operations. Employee's themselves want to work on an averaging schedule but do not meet the Code's requirements. Conversely, employers are looking for ways to meet and support their employee's needs, but operationally may not be able to adhere to the strict definition of a week and the inability to average over periods of, for example, a calendar month rather than four (4) weeks. A calendar month may be operationally required to support both operations, that run twenty-four (24) hours a day, seven (7) days a week, as well as maintain compliance with other governing body requirements such as Transport Canada and related regulations yet is not "allowed" under current Code provisions and regulations.

More and more employees are expressing dissatisfaction with Division I requirements because they feel that the Code prevents them from acquiring working conditions that they feel are more favourable to them in the modern day work environment. Employees ask for and support incentives such as provided time off in lieu of overtime pay, however the Code does not currently speak to or support such initiatives.

The restrictions imposed by the Code cause employers to choose either 100% compliance with the Code and sacrifice the needs of their employees, or meet the needs of their employees and remain competitive with other businesses, which are likely provincially governed, and likely be non-compliant with the Code.

Recommendations:

6. The federal government needs to recognize that the modern, sophisticated workforce finds flexibility in the workplace at least as beneficial and favourable as monetary compensation and therefore provide flexible hours of work and overtime provisions and regulations in Part III of the Canada Labour Code.
7. The federal government must empower and support employees and employers working together to find and establish mutually beneficial working conditions.
8. Provisions and Regulations within/pertaining to Section 169.2 of the Code need to allow averaging to occur in periods other than "weeks" to support unique operational requirements of industrial establishments.
9. Part III of the Code needs to provide provisions and/or regulations that support time off in lieu of overtime pay for employees.

Part III of the Canada Labour Code: Education

An education program for employers is critical for promoting and encouraging Code compliance. A comprehensive, government run education program would require employers to really learn and understand their obligations to employees under the Code.

Industry specific training would be ideal as it would afford businesses the opportunity to discuss specific circumstances and scenarios that may be unique to that industry. Readily available and current courses, classes and web publications on both general and/or industry specific information on the Code would be very beneficial to both employers and employees. It is very important that all information be dated, with binding announcements containing effective dates. When information is removed or modified on the website, explanations should be provided. Additionally, it is imperative that, whether provided by a Human Resources and Skills Development Canada ("HRSDC") office or website, when requirements are implemented by employers and subsequently the interpretation or requirements change, there should not be any negative repercussions for previously implemented standards.

A recurring online training and education forum with a live, real-time Q&A session with HRSDC would be a great addition to the Labour Program website.

Recommendations:

10. The federal government must commit to and supply education and training on Part III of the Code to employers both in a classroom and online format.
11. The federal government must be diligent in maintaining the information provided on its websites by providing explanations for changes in addition to effective dates.
12. When changes to an interpretation and/or requirement of the Code are made, employers should not suffer repercussions for previously implemented standards.

Labour Program: Accountability, Clarity and Visibility

Inconsistent information and a lack of accountability for information provided to employers is a huge obstacle for companies wishing to be in compliance with the Code. It is necessary for all information, and related requirements, to be accurately interpreted and published on the HRSDC Labour Program website.

At times, information provided by HRSDC can differ greatly from one officer to another and information is rarely provided in writing.

Answers to employer's inquiries should be specific and in writing thereby creating accountability to HRSDC for information provided.

The clarification of Federal Labour Standards could be improved by implementing a standard where clear, consistent interpretation and application of the Code's provisions are published on the HRSDC - Labour Program website. It is necessary that HRSDC offices provide clear, relevant, consistent written responses to all inquiries. They must be accountable for the information provided to both businesses and employees.

HRSDC – Labour Program visibility to both employees and employers would assist in building respect for Federal Labour Standards. Currently, HRSDC is often seen as just a name used in an attempt to enforce compliance without any inspections, audits or on-site visits from officers. Governing bodies like Transport Canada and Occupational Health and Safety (Part II of the Code) are visible entities while Part III of the Code remains anonymous unless employee complaints are made.

Additionally, the HRSDC – Labour Program needs to implement documented processes to standardize their complaint response and resolution time. The response time for employers is strictly mandated and enforced; the employer must respond to a complaint within 15 days. No such response commitment exists for the Labour Program as they appear to have unlimited time to respond with no consequences.

Recommendations:

13. The federal government must provide consistent interpretations and applications of Code provisions, and must provide responses in writing.
14. HRSDC - Labour Program must be accountable for the information that it provides to businesses and individuals pertaining to the interpretation and application of provisions and regulations for Part III of the Code.
15. HRSDC – Labour Program must become more visible to both employers and employees.
16. HRSDC- Labour Program must implement and commit to complaint response time standards.

Time to Update

The strict definition of a "week", in Section 166, as being the period between midnight on Saturday and midnight on the immediately following Saturday prevents businesses from being able to meet employee and operational demands because of factors such as software limitations. As only 10% of businesses within Canada are federally regulated, most software written for Canadian businesses are designed based on more liberal provincial guidelines where the strict definition of a week does not exist. To be Code compliant, some businesses are forced to sacrifice weekends and/or consecutive days off for their employees to be able to schedule as per the Code's definition of a week and meet operational demands. This is neither beneficial to the employees nor the business however exemptions are not made for this definition.

Division V, Sections 191-202 of the Code require that a distinction be made between those employees who are and are not considered to be in a continuous operation position/department for the purposes of General Holiday compensation. This creates a compensation inequity between employees within a single organization because the General Holiday requirements under the Code are different for continuous and non-continuous operation employee groups. It would be beneficial to all employees if, when the majority of employees within and organization are considered to be part of a continuous operation, all employees within that organization are classified the same and therefore compensated equally.

Division XV.1, Sexual Harassment, of the Code should be removed as it is covered under the Canadian Human Rights Act otherwise all of the protected areas in the Canadian Human Rights Act should be covered under the Code and not limited to Sexual Harassment.

Recommendations:

17. Section 166 in Part III of the Code needs to broaden the definition of a week to be that of a seven day period.
18. The federal government should recognize the need for consistent employee classification and compensation within the same organization and classify businesses as either a continuous or non-continuous operation based on the majority of its employees.
19. Division XV.1 of the Code should be removed as it is covered under the Canadian Human Rights Act.

Summary of Recommendations

1. Part III of the Code must provide additional, flexible schedule and/or hours of work provisions that employers and employees can use to create mutually beneficial schedules allowing employers to remain competitive.
2. Section 169.2 and related regulations should have eligibility and requirements expanded and broadened for implementing an averaging schedule.
3. Division I in Part III of the Code needs to provide minimum standards while providing options for employees to work flexible weeks, managing their hours over forty (40) in a week.
4. The federal government should provide provisions and regulations that allow employees and employers to treat multiple positions held in different departments within the same company as being separate and therefore hours are payable at straight time
5. Part III of the Code should allow employees the right to choose to pick-up and/or trade shifts with other employees, over and above their standard hours of work, to be paid at straight time.
6. The federal government needs to recognize that the modern, sophisticated workforce finds flexibility in the workplace at least as beneficial and favourable as monetary compensation and therefore provide flexible hours of work and overtime provisions and regulations in Part III of the Code..
7. The federal government must empower and support employees and employers working together to find and establish mutually beneficial working conditions.
8. Provisions and Regulations within/pertaining to Section 169.2 of the Code need to allow averaging to occur in periods other than "weeks" to support unique operational requirements of industrial establishments.
9. Part III of the Code needs to provide provisions and/or regulations that support time off in lieu of overtime pay for employees.
10. The federal government must commit to and supply education and training on Part III of the Code to employers both in a classroom and online format.
11. The federal government must be diligent in maintaining the information provided on its websites by providing explanations for changes in addition to effective dates.
12. When changes to an interpretation and/or requirement of the Canada Labour Code are made, employers should not suffer repercussions for previously implemented standards.
13. The federal government must provide consistent interpretations and applications of Code provisions, and must provide responses in writing.
14. HRSDC - Labour Program must be accountable for the information that it provides to businesses and individuals pertaining to the interpretation and application of provisions and regulations for Part III of the Code.
15. HRSDC – Labour Program must become more visible to both employers and employees.
16. HRSDC- Labour Program must implement and commit to complaint response time standards.
17. Section 166 in Part III of the Code needs to broaden the definition of a week to be that of a seven day period.
18. The federal government should recognize the need for consistent employee classification and compensation within the same organization and classify businesses as either a continuous or non-continuous operation based on the majority of its employees.
19. Division XV.1 of the Code should be removed as it is covered under the Canadian Human Rights Act.