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Canada (158,052)
HTR 741 (8)
Chapter 2

Chapter 2 - The Changing Legal Emphasis.doc

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Ryerson University
HTR 741
Howard Lin

Chapter 2 – The changing legal emphasis The Legal Framework for Employment Law in Canada - Provincial/territorial employment laws govern approx. 90 percent of Canadian workers. - Remaining 10% is governed by federal employment legislation. - Legal framework for employment includes constitutional law, particularly the charter of rights and freedoms, acts of parliament, common law, which is the accumulation of judicial precedents that do not derive from specific pieces of legislation and contract law which governs collective agreements and individual employment contracts. - Constitutional Law – Charter of Rights and Freedom - Legislated Acts of Parliament – Income Tax Act - Common Law – judicial precedents - Contract law – collective agreements/employment contracts - To avoid flooding courts with complaints they created special regulatory bodies to enforce compliance with the law and aid in its interpretation. - Bodies include: human rights commissions and ministries of labour, develop legally binding rules called regulations and evaluate complaints - Regulation – legally binding rules established by the special regulatory bodies created to enforce compliance with the law and aid in its interpretation Employment/Labour Standards Legislation - All employers and employees in Canada, including unionized employees, are covered by employment (labour) standards legislation. - Employment (labour) standards legislation – laws present in every Canadian jurisdiction that establish minimum employee entitlements and set a limit on the maximum number of hours of work permitted per day or week Establish minimum employee entitlements pertaining to: - wages, paid holidays and vacation - maternity, parenting and adoption leaves - bereavement and compassionate care leave - termination notice and overtime pay - Principle of equal pay for equal work Legislation Protecting Human Rights - Illegal to discriminate, even unintentionally - Reactive (complaint-driven) in nature, the focus of such legislation is on the types of acts in which employers should not engage. Included in this category are: 1. The charter of rights and freedoms, federal legislation that is the cornerstone of human rights, and 2. Human rights legislation, which is present in every jurisdiction. The Charter of Rights and Freedoms - Charter of Rights and Freedoms – federal law enacted in 1982 that guarantees freedoms to all Canadians. - Provides the following fundamental rights and freedoms to every Canadian: 1. Freedom of conscience and religion 2. Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication 3. Freedom of peaceful assembly 4. Freedom of association - Also provides Canadian multicultural heritage rights, first people’s rights, minority language education rights, equality rights, right to live and work anywhere in Canada, right to due process in criminal proceedings and the right to democracy. - Equality rights (section 15 of the Charter of Rights and Freedoms) provides the basis for human rights legislation, as it guarantees the right to equal protection and benefits of the law without discrimination, and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. Human Rights Legislation - Every employer is affected by human rights legislations -> prohibits intentional and unintentional discrimination in policies relating to all aspects, terms, and conditions of employment - Prohibits discrimination against all Canadians in a number of areas, including employment. Discrimination Defined - Law prohibits unfair discrimination – making choices on the basis of perceived but inaccurate differences, to the detriment of specific individuals and/or groups. Intentional Discrimination - Employer cannot discriminate directly by deliberately refusing to hire, train, or promote an individual - Prohibited to have differential or unequal treatment - Illegal to engage in intentional discrimination individually indirectly through another party. - Discrimination because of association is another possible type of intentional discrimination listed specifically as a prohibited ground in several Canadian jurisdictions. Unintentional Discrimination - Also known as constructive or systemic discrimination. - Most difficult to detect and combat - Requires reasonable accommodation -> the adjustment of employment policies and practices that an employer may be expected to make so that no individual is denied benefits, disadvantaged in employment, or prevented from carrying out the essential components of a job because of grounds prohibited in human rights legislation - Employers are expected to accommodate to the point of undue hardship, meaning that the financial cost of the accommodation, or health and safety risks to the individual concerned or other employees would make accommodation impossible. - Failure to make every reasonable effort to accommodate employees is a violation of human rights legislation in all Canadian jurisdictions. Permissible Discrimination - Employers are permitted to discriminate if employment preferences are based on a bona fide occupational requirement (BFOR) - BFOR -> a reason for discrimination based on business necessity such as the
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