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Ch2 - The Changing Legal Emphasis

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Shawn Komar

Chapter 2 The Changing Legal Emphasis The Legal Framework for Employment Law in Canada Companies with employees in different provinces/territories must monitor the legislations in each of those jurisdictions and remain current as legislation changes. 14 jurisdictions: 10 provinces; 3 territories; Canada as a whole.  constitutional law - Charter of Rights and Freedoms  legislated Acts of Parliament - Income Tax Act…..  regulations (for legislated Acts) - rules to aid interpretation of laws  common law - judicial precedents  contract law - collective agreements/employment contracts  provincial/territorial employment laws govern 90% of Canadian workers  federal laws govern 10% of workers in federal civil service, Crown corporations and agencies, transportation, banking and communications Regulations are legally binding rules established by special regulatory bodies, such as the Ministry of Labour and Human Rights Commissions, created to enforce compliance with the law and aid in its interpretation. Employment/Labour Standards Legislation  Are 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: o wages, paid holidays and vacation o maternity, parenting and adoption leaves o bereavement and compassionate care leave o termination notice and overtime pay  Set limit on maximum number of work hours permitted per day or week  Principle of equal pay for equal work  Equal Pay for Equal Work specifies that an employer cannot pay male and female employees differently if they are performing the same or substantially similar work. Legislation Protecting Human Rights 1. The Charter of Rights and Freedoms – is a federal law enacted in 1982 that guarantees fundamental freedoms to all Canadians. It applies to all levels of government and takes precedence over all other laws.  Guarantees fundamental freedoms to all Canadians  Equality rights - Section 15 guarantees the right to equal protection and equal benefit of the law without discrimination (in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, sexual orientation) 2. Human Rights Legislation  Discrimination: distinction, exclusion or preference based on a prohibited ground which nullifies or impairs a person‟s rights to full and equal recognition and exercise of human rights and freedoms; intentional and unintentional prohibited in all policies; making choices on the basis of perceived but inaccurate differences, to the detriment of specific individuals/groups o Intentional Discrimination: 1. Intentional discrimination doesn‟t necessarily have to be overt 2. Employers are also prohibited from differential or unequal treatment of individuals/groups 3. Employers cannot discriminate indirectly through a third party (i.e. employment agencies 4. Discrimination because of association is prohibited) o Unintentional Discrimination: is typically embedded in policies and practices that appear neutral on the surface and being implemented impartially have an adverse impact on specific groups of people for reasons that are not job related or required for the safe and efficient operation of the business (i.e. firefighter case where women were required to run the same distance as men – inherently built into the policies)  Requirement for Reasonable Accommodation: based on prohibited grounds in hr legislation, it is the adjustment of employment policies/ practices so that no individual is: denied benefits, at a disadvantaged in employment, and prevented from carrying out a job o Undue Hardship: the point where financial cost or health and safety risks make accommodation impossible; hr legislation mandates employers must accommodate to point of „undue hardship‟ (becomes financially difficult)  Permissible Discrimination: Bona Fide Occupational Requirement o justifiable reason for discrimination o based on business necessity for safe and efficient operations o intrinsically required by job tasks (eg. must have sight to drive a truck)  Human Rights Case Examples o Race and Colour – discrimination on the basis of race and colour is illegal in every Canadian jurisdiction. (e.g. BC Human Rights Tribunal found that two construction companies had discriminated against 38 Latin American workers brought in to work on a public transit project (treated unfairly – lower wages and inferior accommodation) compared to the workers brought in from European countries) o Sexual Orientation – Prohibited in all jurisdictions. All laws must define “common-law partners” to include both same sex and opposite sex couples. o Age – Evidence is rarely available to support the position that age is an accurate indicator of a person‟s ability to perform a particular type of work. (Refer to pg. 33 for example) o Religion – can take many forms in Canada‟s multicultural society; (e.g. it is a violation of human rights laws across Canada to deny time to pray or to prohibit the wearing of a hijaab) o Family Status – Definition of family status as being a parent and a broad definition encompassing all possible parental obligations o Harassment - Unwelcome behaviour that demeans, humiliates, or embarrasses a person and that a reasonable person should have known would be unwelcome; includes bullying/psychological harassment, onus is on the employer to have responsible practices and provide a duty of care 1. Sexual Harassment: offensive or humiliating behaviour that is related to a person's sex, as well as behaviour of a sexual nature that creates an intimidating, unwelcome, hostile, or offensive work environment or that could reasonably be thought to put sexual conditions on a person‟s job or employment opportunities 2. Sexual Coercion: harassment of a sexual nature that results in some direct
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