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New Harassment and Violence Obligations to be added to Canada Labour Code

Fasken
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Labour, Employment and Human Rights Bulletin |Federal Sector Update

On October 25, 2018, Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, (the "Act") received Royal Assent. The Act will, among other things, amend the Canada Labour Code (the "Code") and expand the obligations of federal employers, particularly in relation to workplace harassment and violence. 

The Act is not yet in force. The Government of Canada has stated that it intends to bring the Act into force within two years following Royal Assent. When it comes into force, the Act will:

Expand the stated purpose of Part II of the Code (Occupational Health and Safety) from just preventing accidents and injuries to include prevention of harassment and violence and psychological injuries and illness;

Add a definition of harassment and violence as "any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment"; 

Impose a duty on federally regulated employers to:

Prevent and protect against occurrences of harassment and violence;

Investigate, in accordance with the regulations (which have not yet been finalized), occurrences of harassment and violence that are known to the employer, and to provide support to employees affected by harassment and violence in the workplace. These duty include occurrences involving former employees if the occurrence becomes known to the employer within three months of the last date of employment. The Minister may also extend the three month period if a former employee applies for an extension;

Ensure that employees, including supervisors and managers, receive training in harassment and violence prevention and in relation to these new Code obligations;

Ensure that the employer representative who receives complaints of harassment and violence has knowledge, training and experience in these issues, and knowledge of the relevant legislation; and

Provide employees, in printed and electronic form, copies of Part II of the Code, any applicable regulations, the employer's general health and safety policy, and any other information prescribed by the regulations;

Create an exemption to the mandatory internal complaint resolution process in Part II of the Code. It will now be optional for employees and former employees to complain about an occurrence of harassment or violence through the Code-prescribed internal complaint resolution process. If the employee or former employee does use the internal complaint resolution process, the complaint will follow the normal process and may be referred to the Minister for resolution. The Minister will investigate unless the complaint is an abuse of process or it has been adequately dealt with under the Code, another piece of legislation, or a collective agreement. If the Minister declines to investigate, a written decision will be issued;

Limit the involvement of the policy committee, workplace committee and health and safety representatives in harassment or violence complaints. A complaint of harassment or violence unresolved by the internal complaint resolution process in Part II of the Code may not be referred to the workplace committee or health and safety representative to investigate. The Act is specific that the policy committee, workplace committee, and health and safety representative shall not have the right to participate in investigations of harassment or violence. The Act also prohibits the employer from providing identifying information about a person involved in an occurrence of harassment and violence to the policy committee, workplace committee, or health and safety representative unless that person consents to the disclosure;

Require the Minister to publish an annual report that contains statistical data about harassment and violence in the workplace. The data must include information categorized according to protected grounds under the Canadian Human Rights Act;

Impose an obligation on the Minister to review the harassment and violence provisions in Part II of the Code every five years and to prepare a report on that review that will be tabled in the House of Commons;

Allow for regulations to be enacted to create pilot projects for testing possible amendments that would improve the prevention of accidents, injuries and illness;

Specify that these new provisions are in addition to and do not to limit or replace any rights under the Canadian Human Rights Act; and,

Expand the application of Part II of the Code to individuals in the federal public service employed under the Public Service Employment Act except to the Leader of the Opposition in the House of Commons and in the Senate and to their employer.

These are significant amendments. Currently, the Code does not directly address harassment. To access a remedy, it has been necessary to show that harassment was workplace violence, as defined in the regulations, or contrary to another provision in Part II of the Code or the regulations. This could sometimes be difficult because these provisions were drafted to address physical hazards and illnesses. They did not adapt well to non-physical hazards, like harassment, unless they caused physical injury or made the employee ill. The Act will bring Part II of the Code in line with other provincial jurisdictions which have already enacted harassment and violence prevention obligations in health and safety legislation.       

To support implementation of the Act, regulations will be enacted. Earlier this year, the government solicited public input on these proposed regulations and it is expected that a summary of comments received, as well as a detailed outline of any changes to the proposed regulatory requirements, will be published in the near future.

We will continue to update you on Bill C-65 as it comes into force and the new regulations when they are published.  

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