Legislation and the Workplace in Canada - Research Paper Example

Overview the Legislation that Impacts the Workplace in Canada at both the Provincial and Federal Levels Section number Signature Instructor name Date Institution Word count: 1861 Contents Introduction 2 Canadian Charter of Rights and Freedoms in relation to workplace 2 Canadian Human Rights Act and Provincial Human Rights Acts 3 Employment Equity Act 3 The Workplace Safety and Health Act 4 Conclusion 6 Reference List 8 Appendix 1 showing the percentages in hiring, terminations and promotions following the enactment of the Employment Equity Act 9 Overview the Legislation that Impacts the Workplace in Canada at both the Provincial and Federal Levels Introduction The protection of citizens against discrimination and denial of other rights is one fundamental function of any government. Looking at Canada, the provincial and the federal governments have passed several legislations and amendments aimed at regulating the conditions of almost all workplaces to ensure that the employment rights of the people are protected. Human rights laws are now a powerful force shaping the face of the Canadian labor law system both at federal and provincial levels. Evidently, the growing influence of human rights laws has greatly strengthened the legal claims of employees while encroaching upon workplace norms that were formed through collective agreements and managerial prerogatives. The inclusion of human rights as part of the legislation impacting the workplace in Canada was achieved through the Canadian Charter of Rights and Freedoms which forms part of the constitution Act 1982. Hogg (1982) explains that the Charter is a set of laws outlining the basic rules about how the nation operates. It describes the powers of the provincial governments and the federal government in Canada. It also outlines the rights and freedoms that the Canadian people believe are necessary and important in a free and democratic society. The Charter has had a notable indirect impact on both public employers and private employers who are not considered as government employees because of its application to both provincial and federal human rights legislation. Black-Branch (1995) states that the government has amended these human rights statutes through judicial interpretation in order to conform with the Charter. The impact of this process is the making of Charter principles that are directly applicable to all workplaces in Canada. Some of the rights in the Charter are the right to live and seek/get employment anywhere in Canada and the right to equality, including gender equality. Generally, the provincial and federal legislations in Canada affecting the workplace govern issues such as labour relations, human rights and workplace health and safety. Canadian Charter of Rights and Freedoms in relation to workplace Section 15(1) of the Canadian Charter of Rights and Freedoms guarantees individuals with disabilities the right to equal benefit and equal protection of the law and without discrimination by the Canadian government, agents of the government and its delegates. It also protects individuals with mental disabilities and this interpretation has been expanded to include individuals with learning disabilities. Employers governed by the Charter must therefore provide equal employment opportunity to qualified candidates irrespective of disability (Beaudoin and Ratushny 1989). Canadian Human Rights Act and Provincial Human Rights Acts The federal and provincial human rights Acts prohibit discrimination against individuals with disabilities. A key objective of human rights law is to provide every person in Canada an equal opportunity to services and employment without discrimination. This legislation states clearly that the provisions of employment, facilities, goods, services and accommodations cannot be denied to any person because of their disability. This legislations therefore require that all employers must ensure that they provide reasonable accommodation in their respective workplaces up to the point of undue hardship to disabled employees. However, employers can claim that there is a bona fide occupational requirement (BFOR) that the person with a disability cannot manage to fulfill even with the provision of reasonable accommodation. The provincial codes apply to discrimination perpetrated by the governments as well as by individuals and corporations. Employment Equity Act The purpose of the Canadian Employment Equity Act is to ensure the achievement of equity in the workplace so that no citizen is denied employment opportunities as long as they are qualified and have the ability to perform the job. In order to achieve goal, it is required that employers in Canada who are subject to employment equity should identify and eliminate barriers to employment and make reasonable accommodations so that the workplace fully reflects the greater population. This legislation mainly applies to four designated groups of people. These are members of visible minorities, Aboriginals, women and persons with disabilities. These employers are required to report every year to Human Resources Development Canada (HRDC) regarding their process in attaining a representative workforce in their workplace. Coverage under the Act also applies to federal public agencies, commissions and departments, Crown corporations that employ 100 or more people and federally-regulated employers. These include the military, banks, post offices, national and international transportation, telephone and broadcasting companies among others. This Act covers approximately 10% of the Canadian workforce. The Workplace Safety and Health Act The purpose of this Act is to promote and maintain of the greatest degree of physical, social and mental well-being of employees and prevent ill health caused by their poor working conditions among employees. It also protects workers in their workplace from factors promoting or triggering ill health, and places and maintains workers in a work environment that is adapted to their psychological and physiological condition. This act therefore requires that employers should recognize hazards in their workplaces and prevent them. This is clearly spelled in the beginning of the act which states that its purpose is to “is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment.” In Canada, hazards are classified into biological agents, chemical agents, psychosocial agents stress and violence and physical agents like radiation, light and noise. Others are ergonomic which includes environment, material handling and work organization, and safety which encompasses slippery surfaces, moving machinery, mobile equipment and working at heights. Ladou (2006) explains that the power of this Act is therefore derived from the interactions of public health, industrial or occupational hygiene, occupational medicine, health physics, and industrial or safety engineering. Other functions of this Act include facilitating the recovery and return to work of employees workers who get injuries arising out of and in the course of conducting their employment duties or those who suffer from an occupational disease. It also facilitates re-entry into work of employees and spouses of deceased workers, and compensation and other benefits to injured workers and to the survivors of deceased employees. The duties of employers in accordance to this Act is to ensure safety, health and welfare in workplaces for all employees to an extend that is reasonable practical. They should also compensate employees injured in workplace adequately and the survivors of those who die. As a secondary effect, this Act also protects family members, co-workers, suppliers, customers, nearby communities and other people who are directly and indirectly by the conditions of the workplace environment. Alberta Human Rights Act and Ontario Employment Standards Act 2000 Some of the legislations impacting the workplace in Canada at provincial levels include the Alberta Human Rights Act and the Employment Standards Act 2000 of Ontario. The Alberta Human Rights (AHR) Act is a legislation that prohibits discrimination in employment. The Act prohibits discrimination based in the workplace on the protected grounds of place of origin, colour, race, religious beliefs, ancestry, age, gender, family status, marital status, mental disability, physical disability, sexual orientation and source of income. AHR does not define employment because the courts in Canada have given human rights laws a liberal, broad and purposive interpretation. Generally, it is considered that an employment relationship exists when a person earns their livelihood from the relationship (Alberta Human rights commissions (2010). The Employment Standards Act, ESA 2000 outlines the minimum standards for working that are acceptable in Ontario. It outlines the responsibilities and the rights of both employers and their employers in Ontario workplaces. ESA covers a large range of employment standards including increased flexibility in job arrangements, provisions to help employees with family responsibilities, minimum requirements for workplaces and mechanisms for enforcement and compliance. Areas covered by ESA include hours of work, rest periods, eating periods, posting requirements, minimum wage, equal pay for equal work, overtime, family medical leave, personal emergency leave, pregnancy and parental leave, vacation, public holidays, temporary layoffs, termination and severance of employment and enforcement and compliance (Ontario Ministry of Labour 2009). Carter (2000) explains that even in the absence of Charter principles, Human rights statutes have been given an expansive interpretation by Canadian courts. The recognition of the doctrine of constructive discrimination by the courts has placed a new obligation on both unions and employers to accommodate individual employees ah their workplace up to the point of undue hardship. Despite the absence of actual intent to discriminate, a practice or workplace rule may still be considered by the courts to be unlawful discrimination because of rule’s disproportionate impact on an individual person falling within the protections of human rights law. The Canadian Supreme Court of has now eliminated the distinction between constructive discrimination and direct discrimination. Regardless of what shape a workplace discrimination takes, the only available defence is to establish that a workplace practice or rule is a BFOR. There three essential rules/conditions governing the use of this defence. First, that the practice or rule has a purpose rationally and logically connected to the performance of the job. Secondly, that practice or rule was adopted basing in a good faith and honest belief that it had a justifiable legitimate work-related purpose. Thirdly, that in the application of the practice or rule it was impossible to accommodate individuals who are protected without undue hardship. Because of this test, both employers and unions have been required to re-examine their existing workplace practices and to revise them to make sure that they accommodate persons protected by human rights laws. There is now a potential that many provisions that were made through collective agreement and many administrative practices will be considered as constructive discrimination. This is another level of protection against workplace practices that are discriminative against disabled employees. The deemed termination provisions, denial of promotion because of absenteeism and the interruption of seniority because of illness have all been considered to be improper discrimination against employees who are disabled. However, it is not very clear as to what constitutes improper discrimination against employees who are disabled on matters of compensation (Carter 2000). Conclusion There is a growing influence of human rights laws on the Canadian labour laws. This has had significant implications for country’s labour relations and this is expected to continue in the years ahead. This influence of human rights laws on labour relations has created a new burden to both unions and employers to accommodate claims of human rights by individual employees. This will undoubtedly affect the administration of provisions made through collective agreement in workplaces that are unionized. Collective agreements are bound to be more vulnerable because many collective agreement provisions that exist have the potential to be regarded as type of constructive discrimination. As for non-unionized workplace, these rights could change many employer practices that are well established. It is thus clear that unions and employers must quickly adapt to a new legal environment marked by pre-eminence of human rights laws. However, this is not enough protection for all workers in the workplace. Both the provincial and federal governments have the duty to clarify and pass legislation on what constitutes improper discrimination against employees who are disabled on matters of compensation. Reference List Alberta Human rights commissions. (2010). “Human rights in the workplace.” Online: http://www.albertahumanrights.ab.ca/employment.asp. Accessed on 2nd, December, 2011. Black-Branch Jonathan. (1995). Making sense of the Canadian Charter of Rights and Freedoms, Canadian Education Association Beaudoin G.-A and Ratushny E.. (1989). The Canadian Charter of Rights and Freedoms (2nd Ed). The Carswell Company Limited. Toronto, CA. Carter Donald (2000). Canadian Labour Law at the Millennium: The Growing Influence of Human Rights Require m e n t s. Queen’s University, Industrial Relations Center, IRC Press. Kingston, Ontario. Ladou Joseph (2006). Current Occupational & Environmental Medicine (4th Ed). New York. McGraw-Hill Professional. Hogg Peter. (1982). Canada Act 1982. The Carswell Company Limited. Toronto, CA. Human Resources and Skills Development Canada,HRSD, (2009). “Health and Safety Laws and Regulations: CSA occupational health and safety standards.’ Online: http://www.hrsdc.gc.ca/eng/labour/health_safety/laws.shtml. Accessed on 2nd, December, 2011. Ontario Ministry of Labour (2009). “Employment Standards Act, 2000.” Online: http://www.labour.gov.on.ca/english/es/pubs/guide/guide_intro.php. Accessed on 2nd, December, 2011. Appendix Appendix 1 showing the percentages in hiring, terminations and promotions following the enactment of the Employment Equity Act Read More