O.C. 262/2020

A.R. 159/2020

September 9, 2020


            The Lieutenant Governor in Council makes the Employment Standards Amendment Regulation set out in the attached Appendix.

For Information only

Recommended by:          Minister of Labour and Immigration

Authority:                             Employment Standards Code
                                                (section 138)


 

APPENDIX

Employment Standards Code

EMPLOYMENT STANDARDS
AMENDMENT REGULATION

1   The Employment Standards Regulation (AR 14/97) is amended by this Regulation.

 

2   The heading to Part 2.1 is amended by striking outAgreementsand substitutingArrangements”.

 

3   Section 13.2 is repealed.

 

4   The heading to Division 1 of Part 2.1 is amended by striking outAgreementsand substitutingArrangements”.

 

5   Section 13.3 is amended

                                 (a)    by renumbering section 13.3 as section 13.3(1);

                                 (b)    in subsection (1)

                                           (i)    in the portion preceding clause (a) by striking out “An employee is entitled to overtime under an averaging agreement” and substituting “Subject to this section, an employee is entitled to overtime under an averaging arrangement”;

                                          (ii)    by repealing clause (b) and substituting the following:

                                                  (b)    exceed

                                                             (i)    44 hours in a week, if the averaging period does not exceed one week, or

                                                            (ii)    an average of 44 hours in a week, if the averaging period exceeds one week.

                                 (c)    by adding the following after subsection (1):

(2)  If an averaging arrangement specifies a manner of calculating daily overtime other than the manner set out in subsection (1)(a), an employee is entitled to daily overtime in accordance with the averaging arrangement.

(3)  Subsection (1)(a) does not apply if the averaging arrangement specifies that there is no entitlement to daily overtime.

(4)  Subsection (1)(b) does not apply if different weekly or average weekly overtime provisions are agreed to under an averaging arrangement that is part of a collective agreement.

 

6   Section 13.31 is repealed and the following is substituted:

Requirement to pay

13.31(1)  Subject to this section, an employee who has worked overtime under an averaging arrangement is entitled to be paid the greater of the following:

                                 (a)    the total of the employee’s daily overtime hours calculated in accordance with section 13.3(1)(a) or, if section 13.3(2) applies, in accordance with the averaging arrangement, for the averaging period;

                                 (b)    the employee’s weekly or average weekly overtime hours calculated in accordance with section 13.3(1)(b) or, if section 13.3(4) applies, in accordance with the averaging arrangement, for the averaging period.

(2)  If an averaging arrangement specifies that there is no entitlement to daily overtime, an employee who has worked overtime under the averaging arrangement is entitled to be paid the employee’s weekly or average weekly overtime hours calculated in accordance with section 13.3(1)(b).

(3)  Overtime is payable in accordance with section 8 of the Act, but if the calculation under subsection (1)(b) exceeds the amounts already paid under subsection (1)(a), the difference in overtime is payable not later than 10 consecutive days after the end of the pay period in which the averaging period ends.

 

7   Section 13.32 is repealed.

 

8   Section 13.33 is repealed and the following is substituted:

Amendment, cancellation or replacement of
averaging arrangement

13.33(1)  An employer may amend an averaging arrangement only with respect to the scheduled daily and weekly hours of work.

(2)  An employer may, after giving at least 2 weeks’ written notice to the employee or group of employees to whom an averaging arrangement applies,

                                 (a)    cancel the averaging arrangement, or

                                 (b)    cancel the averaging arrangement and require the employee or group of employees to work a different averaging arrangement.

(3)  An employer may act under subsection (1) or (2) during or at the end of an averaging period.

(4)  An employer may act under subsection (2) without giving at least 2 weeks’ written notice if the action is taken because

                                 (a)    an accident has occurred,

                                 (b)    urgent work is necessary, or

                                 (c)    other unforeseeable or unpreventable circumstances exist.

(5)  Where a collective agreement provides otherwise, an amendment or cancellation of an averaging arrangement, or a requirement to work a different averaging arrangement, must be in accordance with the collective agreement.

Change of shift

13.331(1)  An employer who requires an employee to change from one shift to another is exempt from the requirement to give at least 24 hours’ written notice under section 17(2) of the Act if

                                 (a)    the shift change results from an amendment to an averaging arrangement with respect to the scheduled daily and weekly hours of work, and

                                 (b)    the amendment was made because

                                           (i)    an accident has occurred,

                                          (ii)    urgent work is necessary, or

                                         (iii)    other unforeseeable or unpreventable circumstances exist.

(2)  Where a collective agreement provides otherwise, a requirement to change from one shift to another must be in accordance with the collective agreement.

 

9   Section 13.34 is repealed.

 

10   Section 13.35 is repealed and the following is substituted:

Termination or no longer bound

13.35   For the purposes of section 13.3(1)(b), if, before the end of an averaging period,

                                 (a)    an employee’s employment terminates, or

                                 (b)    the averaging arrangement is cancelled, is cancelled and replaced or ceases to apply to the employee,

the employee’s weekly overtime hours in the averaging period are to be calculated as if the employee had worked the remainder of the scheduled shifts in the averaging period.

 

11   Section 13.36 is repealed.

 

12   Section 13.37 is repealed and the following is substituted:

Copy of averaging arrangement or amendment

13.37(1)  An employer who requires or permits an employee or a group of employees to work an averaging arrangement under section 23.1(1) of the Act must, before the arrangement commences,

                                 (a)    provide a copy of the averaging arrangement to each employee to whom the averaging arrangement applies, and

                                 (b)    in the case of an averaging arrangement that applies to a group of employees, post the averaging arrangement

                                           (i)    on the employer’s website, if any, and

                                          (ii)    in one or more conspicuous places in the workplace where it may be viewed by the employees to whom the averaging arrangement applies.

(2)  An employer referred to in subsection (1) must, as soon as possible after an employee begins employment with the employer as an employee to whom an averaging arrangement applies, or becomes a member of a group of employees to whom an averaging arrangement applies, provide a copy of the averaging arrangement to the employee.

(3)  Where a collective agreement sets out a method of providing a copy of an averaging arrangement to an employee, the copy must be provided in accordance with the collective agreement.

 

13   The following is added after section 13.37:

Transitional

13.38   Part 2.1 as it read before the coming into force of this section continues to apply with respect to an averaging agreement as defined in section 6(1) of the Restoring Balance in Alberta’s Workplaces Act, 2020 that is in effect when this section comes into force until the averaging agreement ceases to be valid under section 6(3) of the Restoring Balance in Alberta’s Workplaces Act, 2020.

 

14   Division 5 of Part 3 is repealed.

 

15   Section 43.843(3) is repealed.

 

16   The following is added after section 43.846:

Transitional

43.847   Section 43.843(3) as it read before the coming into force of this section continues to apply with respect to an averaging agreement as defined in section 6(1) of the Restoring Balance in Alberta’s Workplaces Act, 2020 until the averaging agreement ceases to be valid under section 6(3) of the Restoring Balance in Alberta’s Workplaces Act, 2020.

 

17   Section 43.86 is amended

                                 (a)    in subsection (1)

                                           (i)    in the portion preceding clause (a) by striking out “with respect to” and substituting “that varies or exempts, in whole or in part, any requirement in”;

                                          (ii)    by repealing clause (a) and substituting the following:

                                                  (a)    section 16 of the Act;

                                               (a.1)    section 17 of the Act;

                                               (a.2)    section 18 of the Act;

                                         (iii)    by repealing clause (b) and substituting the following:

                                                  (b)    section 19 of the Act;

                                               (b.1)    section 21 of the Act;

                                         (iv)    by repealing clause (c);

                                 (b)    by repealing subsection (2) and substituting the following:

(2)  The Director may issue a variance or exemption with respect to section 23.1(1) of the Act by extending the averaging period to a number of weeks the Director considers appropriate in the particular circumstances.

                                 (c)    by repealing subsection (3).

 

18   Section 43.87 is amended

                                 (a)    by repealing subsection (1);

                                 (b)    in subsection (2) by adding “under section 74.1 of the Act” after “the Minister’s order”.

 

19   The following is added after section 43.87:

Transitional

43.88   Section 43.86(2) as it read before the coming into force of this section continues to apply with respect to an averaging agreement as defined in section 6(1) of the Restoring Balance in Alberta’s Workplaces Act, 2020 until the averaging agreement ceases to be valid under section 6(3) of the Restoring Balance in Alberta’s Workplaces Act, 2020.

 

20   Section 47 is amended

                                 (a)    in the portion preceding clause (a) by striking out “Despite section 8 of the Act, an” and substituting “An”;

                                 (b)    in clause (a) by adding “despite section 8(1) of the Act,” before “on or before”;

                                 (c)    in clause (b) by striking out “section 9 or 10” and substituting “section 8(2)”.

 

21   Section 50 is amended by striking out “section 9 or 10” and substituting “section 8(2)”.

 

22   Section 51 is amended by adding the following after clause (b):

                             (b.1)    “food service employee” means an employee employed to carry out one or more of the following duties:

                                           (i)    hosting duties;

                                          (ii)    cashier duties;

                                         (iii)    dish washing;

                                         (iv)    bussing tables;

                                          (v)    providing customer service;

                                         (vi)    assembling food orders;

                                        (vii)    waiting on tables;

                                       (viii)    sweeping and mopping floors in common areas;

 

23   Section 52 is amended

                                 (a)    in subsection (1) by adding the following after clause (a)(iii):

                                      (iii.1)    food service employee in a restaurant or other establishment where food is prepared and served or sold,

                                      (iii.2)    janitorial assistant or office cleaner,

                                      (iii.3)    coach for a recreational athletic club or association,

                                      (iii.4)    tutor,

                                 (b)    by adding the following after subsection (1):

(1.1)  An employer that employs an adolescent as a food service employee must ensure that the adolescent works with and is in the continuous presence of at least one other employee 18 years old or older or, if the employer is an individual, the employer.

                                 (c)    by repealing subsection (7).

 

24   Section 55.2(2) is amended by striking out “21” and substituting “30”.

 

25   Section 63.1(3)(c)(iii) is amended by striking out “corporation” wherever it occurs and substituting “partnership”.

 

26   Section 63.3 is repealed and the following is substituted:

Variances, exemptions and orders

63.3   The Director shall publish, in a form or manner the Director considers appropriate, the following with respect to a variance or exemption issued under section 74 of the Act or an order made under section 74.1 of the Act:

                                 (a)    the name of every employer to whom the variance, exemption or order applies or the name under which the employer carries on business, or in the case of a variance, exemption or order issued on application by an employer association and applying to employers who are members of an employer association, the name of the employer association;

                                 (b)    each provision of the Act or regulation that was varied or exempted;

                                 (c)    the effective date of the variance, exemption or order.

 

27   The following is added before section 63.5:

Electronic statement of earnings

63.41   An employer may provide a written statement to an employee under section 14(2) of the Act in electronic form only if

                                 (a)    the employee has a means of confidential access to the statement, and

                                 (b)    the statement is in a form that permits the employee to print a paper copy of the statement.

 

28   Section 63.5 is repealed.

 

29   Schedule 2 is amended

                                 (a)    by repealing the portion following the headingSchedule of Administrative Penaltiesand preceding the Table and substituting the following:

1(1)  Subject to subsection (2), the daily amount in a notice of administrative penalty under section 123.1(2)(a) of the Act, for each day or part of a day on which a contravention of or failure to comply with a provision of the Act or this Regulation, or with an authorizing or enforcement instrument, occurs or continues, must be the amount determined in accordance with the Table.

(2)  The Director may increase or decrease a penalty referred to in subsection (1) taking into consideration the circumstances of the contravention or failure to comply, including, without limitation, the number of employees affected.

2   A one-time amount to address economic benefit in a notice of administrative penalty under section 123.1(2)(b) of the Act must not exceed the amount of the economic benefit derived directly or indirectly as a result of the contravention or failure to comply.

3   This Schedule as it read before the coming into force of this section continues to apply in respect of a notice of administrative penalty served before the coming into force of this section.

                                 (b)    in the Table in the second column by striking outMinimum”;

                                 (c)    in the Table in the third and fourth columns

                                           (i)    by striking outMinimum”;

                                          (ii)    by striking out3 years” and substituting “2 years”.

 

30   Schedule 3 is amended in section 53.96(5)(b) by striking out “critically child” and substituting “critically ill child”.

 

31   This Regulation, except sections 17(a)(i) to (iii) and (c), 18 and 28, has effect on November 1, 2020.