Thanks, Madam Chair. Is there a prescribed form, then, for notice, or is it just a letter that an employer would submit? Is there direction in the bill that the notice should contain reasons as to why a waiver is being sought? I don't think that's the case at all, but I'd like to hear from the Minister. Thanks, Madam Chair.
Thank you. Minister.
Thank you. For those operational details, I would ask you to hand it to Ms. Mathisen.
Ms. Mathisen.
Thank you, Madam Chair. I would add that, first off, in the committee's motion to amend, they had also considered including an application process, and we had had a discussion about whether an application would be appropriate. Our department's fear in introducing an application was that it could actually open up scenarios where employers might potentially test the waters by submitting an application to our office to try to circumvent a proper group termination notice. Our intention with this bill is that it would only apply to very few exceptional scenarios. Although it may not read that it's written out that an employer would be required to provide specific reasons, upon receipt of inadequate notice, our office would contact the employer and ask for information to verify whether the circumstances met the criteria in the waiver of the exception provisions. That's typically how things work in employment standards, is that there is a dialogue back and forth when making these decisions and that dialogue would continue until our office felt satisfied we had enough information to make such a decision. Thank you, Madam Chair.
Thank you. Member.
Thanks, Madam Chair. I appreciate that explanation. I just don't understand why we wouldn't make this an application-based process. Just getting a notice of termination, the employment standards officer, then they have to determine whether a waiver is being sought in the first place, then they have to determine whether they need more information. Why not just make it clear right up front that it's an application-based process? I think the wording in the bill now is going to delay a decision because the employment standards officer is going to have to go back and forth. I just don't get this.
My preference is that the onus be put on the employer to say very clearly, "We are seeking a waiver, and here's why." Leaving this on the back of the employment standards officer, I just don't think is an appropriate way to do this. The onus should be on the employer if they're going to seek this, and I don't think it has to be an onerous thing. I think they can develop a form, check off all the information, provide the contact information. "We are seeking a waiver, yes, and here's the reason why we're seeking a waiver." It could be done very easily. However, to just get a letter that we're going to terminate a number of employees, and then the employment standards officer has to figure out whether it fits the right time period, and then they have to go back and ask for more information about what the grounds are for the waiver, it just doesn't seem to make any sense to me. With that, Madam Chair, I want to move a motion to amend this section, if I may.
I move that clause 11(3) of Bill 20 be amended by deleting the portion of proposed subclause 41(6) preceding paragraph (a) and substituting the following: "(6) On application, the employment standards officer may, by order, waive the application of subsection (2) if the officer is satisfied that." Thank you, Madam Chair.
Thank you. The motion is in order. To the motion. Member for Frame Lake.
Thanks, Madam Chair. Look, I don't want to drag this out any longer than I have to, but, Members, if you want to see what this actually does, everybody has a copy of Bill 20 in the grey binders underneath your desk. If you want to look at this, all this does is add two words at the beginning of clause 6 or whatever it's called here. The two words are "on application." Then it's very clear that it's an employer who is seeking a waiver and that they should be providing some information to the employment standards officer up front. I think this will shorten the period of time for getting to a decision and just allow for a more transparent and a quicker decision at the end of the day. Look, I didn't walk the halls to try to lobby everybody. That's not how I do my stuff here in the House. If you think this is the right way to do something, I would hope that you would vote in favour of it. I don't think I really have much else to add, Madam Chair. Thank you.
Thank you. To the motion. Minister.
Thank you. This was discussed, the idea of an application, while we were working with committee. Ultimately, we came to an agreement that did not include an application. One of the reasons that I provided, and I don't know how influential this was on committee, but once we start introducing applications for this, it will give companies the opportunity to see if they can perhaps game the system. It allows them to test the waters. "Maybe I'll put in an application to see if I can lay people off sooner." That's not at all what this is intended for, this clause, and this motion introduces that idea. If anything, it would, I think, waste the time of the Employment Standards Office because they would have to deal with those companies who are testing the water.
I want to assure everyone that, if there is a notice of group termination, if there are 25, 50, 100 people getting laid off, you had better believe that the Employment Standards Office pays attention and deals with that immediately. It doesn't waste time; it doesn't dilly-dally and wait to make a phone call back; it jumps on it. That's what they do. In my opinion, I see this as adding red tape and adding time and really being contrary, I think, to what the Member's intent is here. Thank you.
Thank you, Minister. To the motion. Member for Kam Lake.
Thank you very much, Madam Chair. This was discussed at committee at length, and I do see both where the Member is coming from and also where the Minister is coming from. Ultimately, where I ended up sitting was feeling that I wanted to make sure I was doing my due diligence to ensure I was protecting the rights of employers and making sure that, if somebody decided that they were going to go down this path, that they were fully committed to it before doing it and respect the views of the department that it would potentially open up opportunity for people to game the system. Ultimately, I won't be supporting the motion for that reason, in that I feel that it is important that, if somebody is going to do a group termination, that they are committed to it from the outset. Thank you.
Thank you, Member. To the motion.
Question.
Question has been called. Member for Frame Lake.
Thanks, Madam Chair. I am not sure I can accept what the Minister said. Section 41(1) of the act, and this is one that is not being changed, says that an employer who wishes to terminate the employment of 25 or more employees at one time, or within a period not exceeding four weeks, shall give copy of the notice of termination to the employment standards officer and the trade union of which the employees may be members. This precludes a company from going on a fishing expedition, and if an employment standards officer gets a notice of group termination, and it's not for an actual termination, why would they even accept it? They could dismiss it very quickly.
Thank you. The Member has requested a recorded vote. All in favour, please stand.
The Member for Frame Lake.
All those opposed, please stand.
The Member for Deh Cho, the Member for Yellowknife North, the Member for Nahendeh, the Member for Sahtu, the Member for Inuvik Boot Lake, the Member for Hay River North, the Member for Great Slave, the Member for Kam Lake, the Member for Hay River South, the Member for Tu Nedhe-Wiilideh, the Member for Yellowknife South, the Member for Range Lake, the Member for Yellowknife Centre.
Abstentions? None. Thank you. The results of the recorded vote are: 1 in favour, 13 opposed, no abstentions. The motion is defeated.
---Defeated
Clause 11, does committee agree? Member for Frame Lake.
Thanks, Madam Chair. I have one other issue I want to raise with this part of the bill. There are a number of reasons outlined that an employment standards officer could use to satisfy themselves that a waiver could be issued. Those are found in 6(a). The committee received correspondence from the Union of Northern Workers that expressed some concern about the broad and vague language of some of these provisions, in particular around (ii), climatic or economic conditions, so I would like to ask the Minister whether there is any kind of further case law or definitions or whatever that might inform how an employer can seek an exemption for climatic or economic conditions? Thank you, Madam Chair.
Thank you. Minister.
Thank you. I just want to point out that this clause isn't set up so that employers seek exemptions. Generally, what we expect to happen, and what happens across Canada, is that employers' backs are up against the wall. They are laying people off without checking legislation because it's a dire situation and they have no choice. I just wanted to make that point.
There is case law around the climatic or economic conditions. As was mentioned earlier, this was modelled after other acts from around Canada. There are also a number of qualifiers. In 11(6)(a), it says that it has to be an unforeseen event. It has to be beyond the control of the employer. If you see 11(6)(b), it says the employer has to exercise due diligence to avoid the cause of the termination. In addition to the case law, there are qualifiers right within the act as well. Thank you.
Thank you. Member.
Thanks, Madam Chair. I'm not sure that really answered the question. Look, I fully understand that there are a number of reasons why a waiver could be granted: destruction or major breakdown of equipment or machinery equipment and a number of kinds of emergencies. I just wonder about broad and vague language like "climatic or economic conditions," and whether there is any kind of guidance there. There doesn't seem to be any kind of guidance in the bill, the act itself, around how this could be interpreted. On what grounds would an employment standards officer be able to grant an exemption? Simply a business is doing bad, and it wasn't foreseen? That might be good enough for an employer to lay off their employees. What kind of guidance is available here? Thanks, Madam Chair.
Thank you. Minister.
Thank you. Businesses do bad all the time. That's not unforeseen. If you are going into business, you should foresee that you might not do well. That's just the way of the world. When we talk about economic conditions, that's a broader condition. There is some guidance in case law, but what happened is we did try and work to narrow this language down. In the end, what we did was we came back full circle, we had 10 times as many words that were basically a broad definition for climate or economic conditions. We could put "rain, snow, heavy winds," and other weather, but we are saying, basically, "climate conditions."
There were attempts made, but narrowing this down, I think, would lead us to situations where we are excluding companies who have legitimate claims from this exemption because they don't fit into the letter of the law. I think we've all seen policies that you kind of shake your head at because they don't seem to make any sense. It's a small technical point that is sort of working against the spirit of the bill. We wanted to avoid that, and we felt that there was enough case law, enough history with these types of clauses in Canada, that this was an appropriate level of detail. Thank you.
Thank you. Member.
Thanks, Madam Chair. I appreciate the Minister's explanation. I don't agree with it. If climatic or economic conditions lead to destruction or major breakdown of machinery or equipment, it's already covered with (i). If climactic or economic conditions lead to some kind of an emergency, particularly climatic conditions, it likely could be and would be covered off by the kinds of emergencies that are specified in the following three subclauses there. I think having this broad and vague language in here is not very helpful and is probably going to lead to things getting taken to court and so on for interpretations, appeals, and so on. I think that terms and conditions already laid out here with (i) about destruction or major breakdown of machinery or equipment or the other provisions around emergencies already cover off what could be covered by climatic or economic conditions. With that, Madam Chair, I'm going to move another motion. I guess I'm not doing too well here today, but I'll go ahead and do it anyway.
That Bill 20 be amended by subclause 11(3) by deleting proposed subparagraph 41, (6)(a)(iii). Thank you, Madam Chair.
The motion is in order. To the motion. Member for Frame Lake.
Thanks. I'm not going to prolong this anymore, I just think that having the broad, vague language in here is not in keeping with trying to find a proper balance between the rights of workers and the rights of an employer. I think removing this line will help maintain a better balance. Thanks, Madam Chair. I request a recorded vote again. Thank you.
Thank you. To the motion. Member for Great Slave.
Thank you, Madam Chair. I also had questions about this particularly, not so much around climatic conditions but around the economic situation in the scenario where somebody hasn't been doing their due diligence and had not been a proper businessperson and tried to use this. However, any further discussion with the clerk and the Minister and the pointing out of section A saying that it has to be beyond the control of the employer or because of an unforeseen event, but then, as well, that this is the discretion of the employment standard officer, who is someone that we have entrusted a lot of faith in already to make certain decisions when it comes to these sorts of things. What I'm saying is that I think of a scenario where, say, a road is wiped out by a climatic condition and workers can't get to the site, the site shuts down, nobody can work, and they are laid off. There won't be a state of emergency declared by any state or level of government at that time. It doesn't lead to destruction or major breakdown of equipment, so there are scenarios where I don't think the other subclauses do fit or would be able to accommodate for those types of situations, and as a result I will be voting against this motion. Thank you.
Thank you. To the motion.
Question.
The Member for Frame Lake.
All those opposed, please stand.
The Member for Deh Cho. The Member for Yellowknife North. The Member for Nahendeh. The Member for Sahtu. The Member for Inuvik Boot Lake. The Member for Hay River North. The Member for Great Slave. The Member for Kam Lake. The Member for Hay River South. Member for Tu Nedhe-Wiilideh. The Member for Yellowknife South. The Member for Range Lake. The Member Yellowknife Centre.
All those abstaining, please stand. Thank you. The results of the recorded vote: one in favour, 13 opposed, zero abstentions. The motion is defeated.
---Defeated
Clause 11, does committee agree?
---Clauses 11 through 12 inclusive approved
Committee, to the bill as a whole. Does committee agree that Bill 20, An Act to Amend the Employment Standards Act, is now ready for third reading?
Agreed.
Thank you, committee. Bill 20, An Act to Amend the Employment Standards Act, is now ready for third reading. Does committee agree that this concludes our consideration of Bill 20, An Act to Amend the Employment Standards Act?
Agreed.
