Thank you. Member.
Thanks, Madam Chair. I was going to make the same comment, that the pandemic has been going on for a year, and the bill arrived maybe a month or two ago. It looks to me like there would have been an opportunity for public consultation, certainly with employers and employees, in some ways. I want to turn, though, to the group termination notice provisions. It looks like they have been in place in the current legislation since 2008. I am just wondering why they are being changed now. Thanks, Madam Chair.
Thank you. Minister.
Thank you, Madam Chair. During the pandemic, we saw a lot of businesses disrupted. We saw the mines halt operations with really no notice. We saw international flights cancelled. Tourists stopped coming into the territory. We realized there were employers who were in situations, who, due to those monumental unforeseen situations, would find themselves in violation of the act at no fault of their own. We didn't want a situation where there is a contractor up at the mines, and they have 50 employees, and that's their only contract, and the mine shuts down one day and says, "You send everyone home. We're done. We're not working." All of a sudden, that company would be in violation of this act if they had to lay everyone off because of that situation. That doesn't necessarily seem fair. We wanted to ensure that, in these very rare, unexpected, and exceptional circumstances, there was an opportunity for some fair dealing with those companies. Thank you.
Thank you. Member.
Thanks, Madam Chair. How often do we track the number of group termination notices that are given under Section 41 of the act? Do we track that over time? Has it ever been really used before? Thanks, Madam Chair.
Thank you. Minister.
Thank you. I would like to hand this to Ms. Mathisen. Thank you.
Thank you. Ms. Mathisen.
Thank you Madam Chair. Our office doesn't typically track the number of group terminations that occur, but they do occur from time to time. Thank you, Madam Chair.
Thank you. Member.
Thanks, Madam Chair. Just to be really clear, was there a request from employers, individual companies, bigger employers, to make this change? Where is the impetus coming from? Thanks, Madam Chair.
Thank you. Minister.
Thank you. We received correspondence from, I guess you would say, an industry lobbyist group, if that is what the Member is referencing, but it was really the northern experience and the situation we found ourselves in that led to the inclusion of this. We often receive suggestions from lobbyists about what we should be doing in terms of our employment legislation, and it is not the case that it is just automatically implemented. Thank you.
Thank you. Member.
Thanks. I appreciate the Minister's frankness there. I guess we were lobbied to make this change. I need to turn to the law clerk, Madam Chair, or I'll start with the Minister. I understand that, of course, there are individual termination provisions in the act and that people can actually get paid out. There are the group termination notice provisions, as well; people don't get paid out. However, if this is passed, it appears to me that some workers, if they work for a larger workplace with 20 or more employees, they could lose weeks of paid work as a result of a waiver being granted. Is that the Minister's interpretation of how this could affect employees? Thanks, Madam Chair.
Thank you. Minister.
No, that is not my interpretation. This isn't an application process whereby a company thinks that perhaps they can lay off employees sooner by applying to the government. That is not how this works, at all. Employers will provide notice of group termination, and if they haven't provided adequate group termination, under the current act, they are in violation of the act. What this amendment would do would be to allow the government, the employment standards officer, to look at the situation surrounding that termination and determine whether or not the employer met all of the criteria in the act. If they did, then they would not be in violation of the act. However, any sort of individual notice of termination or pay in lieu of notice is governed by a completely different section of this act, and this does not affect individual employees' rights, at all. This is really an administrative section that involves an employer and the Employment Standards Office and, in applicable situations, trade unions, so this does not give companies the right to terminate employees sooner than they can now. Thank you.
Thank you. Member.
Thanks. I'll try one more time maybe. Right now, there is no provision for a waiver in the legislation. This bill is about providing an opportunity for such a waiver, which would allow for the shortening of the group notice, a group termination notice period. If a waiver is accepted or ordered by an employment standards officer, employees will lose weeks of paid work. Is that not the case? Thanks, Madam Chair.
Minister.
That is not the case. Thank you.
Member for Frame Lake.
Thanks, Madam Chair. I would like to seek the opinion of the law clerk on this, please, Madam Chair.
Thank you. Minister.
I think he's seeking the opinion of the law clerk.
Okay. Mr. Clerk.
Thank you, Madam Chair. The act provides at Section 41(3) that no employer shall terminate the employment of any employee for which a notice of termination is required before the required period of notice has expired. That provision of the act is remaining. It is unaffected by the bill, and the bill does not affect individual entitlement to severance or notice. Those are dealt with in a separate section of the act. However, insofar as Section 41(3) goes, that no employer shall terminate the employment before the required periods of notice has expired, what the bill would contemplate is that the employment standards officer would then have the ability to set the appropriate period of notice and that the employer would not be able to proceed with the group termination before the expiry of whatever that notice is determined to be.
Thank you. Member.
Thanks. I appreciate that. There is no waiver provision in the legislation as it stands now. This would provide a waiver which could conceivably, or would if the employment standards officer issues an order, shorten up the group notice time period. Thus, workers could lose weeks of paid leave. Is that a correct interpretation? That's for the law clerk. Thanks, Madam Chair.
Law clerk.
Thank you, Madam Chair. It is possible that the employment standards officer could decide to reduce the period of notice to a period lower than what is currently in the act. That is correct.
Thank you. Are there any other general comments? Member for Tu Nedhe-Wiilideh.
Marsi cho, Madam Chair. Just listening to some of my comments to my colleague here and some of the opening remarks, there was mention that similar acts to this act are happening in other parts of the country. The question to the Minister is: has there been a cross-jurisdictional scan for this act? Thank you.
Thank you, Member. Minister.
Yes, there has, and every jurisdiction other than the NWT and Nunavut have similar provisions to the group termination provision. Thank you.
Thank you, Minister. Member for Tu Nedhe-Wiilideh.
No, nothing further. I just wanted to know that. Thank you.
Are there any other general comments? Does the committee agree that there are no further general comments? We can proceed to clause-by-clause review of the bill. Committee, we will defer the bill number and title until after consideration of the clauses. Please turn to page 1 of the bill. Clause 1, does committee agree?
---Clauses 1 through 10 inclusive approved
Clause 11? Member for Frame Lake.
Thanks, Madam Chair. I do have a few more questions of the Minister on this clause, and they really pertain to page 6, over on the next page. I just wonder: why is the employment standards officer the individual who is making the determination? Why is it not the Minister? Thanks, Madam Chair.
Thank you. Minister.
Thank you. I believe that is best practice. I think there are maybe two jurisdictions in Canada in which it's the Minister who makes these types of decisions. There is more to this than just reading a briefing note and making a decision, and that's what Ministers are good at. There is case law that has to be looked at; there is substantial case law around provisions like this in Canada. Perhaps I could ask Ms. Mathisen to explain because I saw what happened during the pandemic when the employment standards officers had to make decisions. I saw the work that went into making those decisions and the things that they had to look at, the research they had to do. Perhaps I can ask Ms. Mathisen to explain the process and why it is an appropriate decision to be made by an employment standards officer. Thank you.
Thank you, Minister. Ms. Mathisen.
Thank you, Madam Chair. The employment standards officer would be making the decision, but as the Employment Standards Act is under the Minister's authority, he would still technically be accountable for the decisions made under the act. I would like to clarify: the language that we used in Bill 20 was modelled after other jurisdictions' language in this regard. As the Minister noted, there is substantial case law that does exist already that would help guide our interpretation of these provisions should a situation occur, and so that would be very beneficial to our office in determining whether or not a waiver would be granted or ordered. Thank you, Madam Chair.
Thank you. Member.
Thanks, Madam Chair. I'm still of the view that I think this should be the Minister making a decision. The Minister should be held accountable. It's probably not going to happen all that often, I hope, and I think it has lots of political ramifications. I think the Minister should be the one making the decision, but I'm going to let that one go for now. I'm just wondering: the way that this section reads now, this is not an application-based process. Somehow, a notice of termination lands on an employment standards officer's desk, and they have to make the determination about whether it meets the timelines set out in the bill or the act. Then they have to determine whether all of these terms and conditions are met. That seems to place the onus of dealing with a waiver on the employment standards officer rather than on an employer, so why is this done this way? Why is it not an application-based process? Thanks, Madam Chair.
Thank you. Minister.
Thank you. The notice is essentially an application. If there was an application, it would be a duplication of the information contained in the notice, and so it would just be more paperwork. Thank you.
Thank you. Member.
