Canada: Alberta's NDP Government And Potential Labour And Employment Policy Changes

On May 5, 2015, Rachel Notley and her New Democratic Party (NDP) were elected to a majority provincial government in Alberta. This is the first change of the governing political party since the 1971 election. Changes to policy and legislation are widely expected as a result of this significant political shift.

This memorandum reviews potential policy changes to labour and employment law under the NDP government. In preparing this memorandum we reviewed the NDP Platform, statements by the NDP MLAs recorded in Hansard, and other statements by party leadership. Policies under other New Democratic governments in Canadian provinces are also summarized as they are likely to be considered by the new Alberta government.

1. 2015 NDP election Platform¹

The proposed Job Creation Tax Credit is intended to be a direct incentive to businesses to create new jobs. The tax credit will refund 10 percent of each new employee's salary (to a maximum salary of $50,000) to employers to a maximum of 100 employees per company. The NDP platform projected this tax credit would cost $89 million per year and be administered through employer payroll and employment insurance.

The NDP committed to increase the minimum wage to $15 per hour by 2018 making it the highest minimum wage in Canada. The current minimum wage in Alberta is $10.20. No timeline for implementation is outlined in the platform; however, public comments indicated that a preliminary increase to $12 per hour would occur in the first year (presumably 2016)². Increasing the minimum wage to a "living wage" was repeatedly raised in the legislature by the NDP when in opposition.³  

The NDP have had a historical interest in extended compassionate care leaves and this interest was part of their 2015 platform.

In 2013, the NDP voiced their enthusiastic support for Bill 203, the Employment Standards (Compassionate Care Leave) Amendment Act (2012), which came into force on February 1, 2014. The amendment provides unpaid leave and job protection to Albertans who are primary caregivers to someone so seriously ill as to be close to death, allowing the caregiver eight weeks unpaid leave within a 26-week period. This leave is separate but complementary to the federal compassionate care benefit offered through Employment Insurance.

While supportive of the bill, the NDP expressed their view that Bill 203 was merely a starting point. During debate on the bill, NDP MLA David Eggen (now Minister of Education) unsuccessfully moved to remove the eligibility requirement of 52 weeks consecutive work.⁴ Rachel Notley also criticized the lack of support for people with both terminally and chronically ill dependants.⁵  

Conclusion: Based these platform items and other commentary, expanded compassionate care standards are likely to be a policy priority for the NDP. From these discussions, changes to Alberta labour and employment policies may include:

• lower or no minimum weeks worked prior to being eligible for the leave;
• increasing the employee's flexibility to divide the eight-week leave over multiple, smaller leaves;
• extending compassionate care leave to those caring for chronically ill family members; and,
• the creation of new forms of compassionate care leave to address the needs of people with chronically ill family members.

Employers may face accommodating requests for unpaid compassionate leave and finding replacement labour for leaves beyond 26 weeks. It is unclear whether the "family-friendly work standards" could include other policy measures.

2. Statements in the Legislative Assembly

Several NDP positions in response to previous government policy may indicate other possible changes to labour and employment policies.

a. Responses to Government Bills

Bill history: 28th Legislature, 3rd Session (2014-2015)

An amendment to the Alberta Personal Information Protection Act was required after the Supreme Court of Canada struck down sections of PIPA in November 2013, ruling that it contravened unions' rights to freedom of expression. The challenge was raised after the Office of the Information and Privacy Commissioner ruled that a union's disclosure of private information (in filming people crossing a picket line) was in violation of the PIPA.

Bill 3 amended PIPA in a manner that NDP MLA Brian Mason described as "circumventing the spirit of the Supreme Court decision",⁶ because it restricts the union's ability to collect information. Rachel Notley also stated that she would like to see a comprehensive and thoughtful solution and that Bill 3 was a poorly thought-out response to the Supreme Court decision.

Conclusion:PIPA may be amended under the NDP government to reduce restrictions on the collection of personal information by unions. This would potentially affect employers involved in labour negotiations. A thorough review of the legislation may be initiated by the NDP.

Bill history:  28th Legislature, 3rd Session (2014-2015)  

The amendment proposed by the PC government in Bill 6 causes information to be provided by the Workers Compensation Board (WCB) to the Appeals Commission when a WCB decision or determination is appealed. Previously, that information had to be requested by the Appeals Commission. Bill 6 also added permission for the WCB to disclose information from investigations to any agency or department of the provincial or federal governments in order to carry out the purposes of the Act.

The NDP strongly disagreed with this change on the basis of protecting worker's privacy. Attempts to have the Bill removed from second reading were unsuccessful, and the Bill eventually passed.

Conclusion: A revision of the Workers Compensation Act may be forthcoming. Any amendment would likely reverse the amendments under Bill 6 and, based on the NDP's historical political position, potentially go further to install additional safeguards to worker's privacy where they feel it might be lacking.

Bill History:  28th Legislation, 2nd Session  

Bill 9 attempted to amend public sector pensions to allow the government to reduce benefits such as early retirement and cost of living increases for new public servants. Similarly to Bill 10 below, the NDP expressed concern that defined benefit plans would be transformed into targeted benefit plans to the detriment of pensioners.⁷ See Bill 10 for conclusions.

Bill history:  28th Legislature, 2nd Session (2014)

Bill 10 amended the new Employment Pension Plan Act. The NDP expressed particular concerns about allowing employers to convert defined benefit plans into a targeted benefit plan. The NDP expressed concern that would allow the pension plan administrators to reduce benefits for up to 138,000 people who are not protected by unions.

Bill 10 did not move to third reading. However, considering the passionate defence of defined benefit plans and pensions schemes as a whole, new legislation to encourage or protect benefit plans may also prove to be an NDP policy.

Bill history:  28th Legislature, 1st Session (2012 – 2014)

This Bill updated the Workers' Compensation Amendment Act to include posttraumatic stress disorder. The NDP supported the bill but argued that it did not go far enough in its scope. Particularly, Rachel Notley expressed her concern that occupations not named (e.g., paramedics) would be presented with even greater challenges when it comes to applying for compensation for post-traumatic stress.

Based on these comments, it seems likely that a wider recognition of mental illness caused by workplace injury may be included in any amendments to the Workers' Compensation Act.

Bill history:  28th Legislature, 1st Session (2012 – 2014), and 28th Legislature, 1st Session (2012 – 2014)

These two bills were subject to very strong NDP and union opposition. Neither is still in force following the combination of legal challenges and the PC government's reversal of its position.

Discussions of both Acts demonstrated the NDP's ongoing support for union activities and a respect for collective bargaining. In discussion of the Bill, Rachel Notley discouraged illegal actions but praised the historical role of illegal strikes to ensure safety standards and allow people to refuse unsafe work. She also stated that public sector workers should never have lost the right to strike under Premier Lougheed, and expressed disappointment in the compromise offered by the Supreme Court's giving public sector employees binding arbitration instead of their right to strike.⁹  

Conclusion: The NDP's support for unions and collective bargaining remains very strong. Alberta is highly unlikely to see any legislation that weakens unions. While she was expressing her personal views on the matter, the NDP may be friendly towards the idea of reinstating the right to strike for public employees.

b. Other Policy Statements within the Legislature

The NDP and Rachel Notley have repeatedly called on the government to extend workplace health and safety regulations to Alberta's farm workers.¹⁰,¹¹

3. NDP Policies in Other Provincial Governments

The NDP won a majority government in 2009 under Premier Dexter, becoming the first NDP government in the Maritimes before being ousted in 2013.

The NDP:

• Introduced first-contract arbitration, which allows an arbitrator to impose a contract if a new union and employer reach an impasse in negotiations over an extended period of time.¹²
• Consolidated the labour standard review boards into a single Labour Board. Initially, the new Board consisting of only unionized employees, but following concern from the business community the government amended the Bill to guarantee non-unionized businesses would be consulted on potential labour changes.¹³
• Introduced the Critically Ill Child Care Leave, an unpaid leave allowing parents and guardians to take time off work to care for a critically ill or injured child. The parent can take up to 37 weeks off work in total within a 52-week timeline with job protection, so long as they have worked a minimum of three months with their current employer.¹⁴
• Introduced the Citizenship Ceremony Leave, an unpaid one-day leave to allow people to attend their Citizenship Ceremony.¹⁵
• Amended the Labour Standards Code to prohibit the charging of recruitment fees from employees. Employers are now required to keep payroll and other records for three years instead of one, and must include information on recruitment payments.¹⁶  

Manitoba has re-elected NDP governments since 1999.

In that period, the NDP has:¹⁷  

• Amended the Labour Relations Act on multiple occasions, extending it to school teachers and amending procedures around work stoppages and collective bargaining.
• Amended the Employment Standards Code to:
  • increase parental leave from 17 to 37 weeks and reduce the qualification period from 12 to 7 months (2000);
  • introduce Compassionate Care Leave, providing eight weeks of job protection to care for a gravely ill family member (2003);
  • introduce unpaid leave for critical illness of a child (up to 37 weeks) or the death or disappearance of a child as a result of a crime (104 weeks);
  • provide job security for members of the reserve force of the Canadian Forces;
  • add provisions around unpaid family leave and bereavement leave;
  • introduce unpaid leave (up to 13 weeks) for the purpose of organ donation; and
  • repeal a provision allowing certain employers to pay less than minimum way to people with disabilities.
   
• Amended the Pension Benefits Act to
  • recognize same-sex partners;
  • permit the transfer of some locked-in benefits to an income fund that is not locked-in, revise portability provisions and allow for phased-in retirement;
  • strengthen enforcement and appeal processes; and
  • provide Manitoba with the authority to adopt the rules of another jurisdiction. 
   
• After striking a committee to review the Workers Compensation Act, amended it to:
  • expand compensation to firefighters who contract cancer;
  • increase permanent injury benefits;
  • eliminate benefit reductions for workers 45 and older; and
  • provide 100-percent wage replacement for minimum wage earners.
   
• Implemented comprehensive amendments to the Workplace Safety and Health Act.

The last NDP government in British Columbia was in power from 1991 to 2001. The current NDP's platform from the previous provincial election includes measures to:¹⁸

• strengthen and enforce labour standards;
• tie the minimum wage to inflation;
• improve conditions for Temporary Foreign Workers;
• repeal Bills 27, 28 and 29 which limited free collective bargaining in the health and education sectors; and
• ensure workers can freely join unions, and encourage first-contract settlements through mediation.

Footnotes

^{1 Alberta New Democratic Party, "Leadership for What Matters – Election Platform 2015".}

^{2 Darcy Henton, " Boosting minimum wage to $15 would be devastating says business lobby" Calgary Herald (20 April 2015).}

^{3 Alberta, Legislative Assembly, Alberta Hansard, 28th Leg, 1st Sess, No 13a (1 November 2012) at 471 (Rachel Notley)}

^{4 Alberta, Legislative Assembly, Alberta Hansard, 28th Leg, 1st Sess, No 57 (13 May 2013) at 2300 (David Eggen)}

^{5 Alberta, Legislative Assembly, Alberta Hansard, 28th Leg, 1st Sess, No 49 (22 April 2013) at 1905 (Rachel Notley)}

^{6 Alberta, Legislative Assembly, Alberta Hansard, 28th Leg, 3rd Sess, No 10e (1 December 2014) at 263 (Brian Mason)}

^{7 Alberta, Legislative Assembly, Alberta Hansard, 28th Leg, 3rd Sess, No 10e (22 April 2014) at 556 (Brian Mason)}

^{8 Alberta, Legislative Assembly, Alberta Hansard, 28th Leg, 2nd Sess, No 22e (22 April 2014) at 588 (Rachel Notley)}

^{9 Alberta, Legislative Assembly, Alberta Hansard, 28th Leg, 1st Sess, No 77e (2 December 2013) at 3272 (Rachel Notley)}

^{10 Alberta New Democratic Party, News Release, " Statement by NDP leader Rachel Notley on the Day of Mourning" (28 April 2015).}

^{11 Sarah Copeland, " Redford Takes Heat For Labour Laws", Drumheller Online (18 September 2012).}

^{12 Lisa Gallivan, " Revisiting First Contract Arbitration Rules in Nova Scotia" (December 12, 2013), Stewart McKelvey.}

^{13 Labour and Advanced Education, " Changes to the Labour Standards Code", Government of Nova Scotia.}

^{14 ibid}

^{15 ibid}

^{16 ibid}

^{17 Labour and Immigration, "A History of Manitoba Labour Programs" Government of Manitoba.}

^{18 New Democratic Party of British Columbia, Changes for the Better: BC NDP Platform 2013.}

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.