Parliament tackles harassment and violence in the federal work place

Background

A number of important changes regarding violence and harassment in federally regulated work places received royal assent at the end of 2018, and are expected to come into force this year. In 2017, the federal government introduced Bill C-65: An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act (the Bill). Since our last publication on the Bill, the upper and lower chambers of Parliament made a number of amendments, introducing a series of new occupational health and safety obligations and prohibitions, namely under the Canada Labour Code (the Code).

Amendments to the Code

First, the Bill significantly broadens the purpose of Part II of the Code. Currently, Part II relates to “accidents and injury to health arising out of, linked with or occurring in the course of employment.” The Bill expands this language to now address “accidents, occurrences of harassment and violence and physical or psychological injuries and illnesses arising out of, linked with or occurring in the course of employment.”

The Bill also amends the definition of harassment and violence to “any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment.” Notably, the Bill allows the Minister of Employment, Workforce Development and Labour (the Minister) to introduce regulations to prescribe particular actions, conduct, or comments that would amount to harassment and violence.

Among other obligations, the Bill provides that employers:

• Prevent and protect against harassment and violence in the work place, including with respect to former employees;^[1]
• Respond to occurrences of harassment and violence in the work place, including with respect to former employees;
• Offer support to employees affected by harassment and violence;
• Investigate, record and report, in accordance with the regulations, all accidents, occurrences of harassment and violence, occupational illnesses and other hazardous occurrences known to the employer, including with respect to former employees;
• Make certain health and safety information available to employees in the work place;
• Provide training on harassment and violence to employees, including those who have supervisory or managerial responsibilities;
• Appoint a designated person before whom employees may file a complaint relating to an occurrence of harassment and violence. The designated person must have the required knowledge, training, and experience in issues relating to harassment and violence, and the relevant legislation;
• Must allow for the referral of unresolved complaints relating to an occurrence of harassment and violence to the Minister, and allow the Minister to investigate thereafter;
• Allow a former employee to make a complaint related to an occurrence of harassment and violence in the work place, within the prescribed timeframe.

Furthermore, the Bill will also prohibit employers from:

• Allowing a policy committee, work place committee or health and safety representative to participate in any investigation, other than those related to work refusals, relating to an occurrence of harassment and violence
• Providing any information that is likely to reveal the identity of a person involved in an occurrence of harassment and violence to a policy committee, work place committee, or health and safety representative, other than in some work refusal situations or if consent is provided.

Finally, the Bill also explicitly states that none of its changes limit or restrict employees’ rights under the Canadian Human Rights Act.

Takeaways

Although the Bill received royal assent on October 25, 2018, its coming into force is pending an order by the Governor-in-Council. Also, forthcoming regulations under Bill C-65 have yet to be published. Among other things, the requirements for work place harassment and violence prevention policies and the appropriate procedures to respond to such incidents will be detailed in the regulations. Also included in the regulations will be confidentiality requirements, how to respond to third-party incidents, mandatory qualifications that the designated person must have, and the support to be provided to employees who have suffered harassment and violence in the work place.

In the meantime, it would be prudent for federally regulated employers to identify existing policies, procedures, and training programs relating to work place safety for future review and updating once the regulations are released. Indeed, considering such measures will be an important step towards prioritizing compliance with this important piece of legislation.

We will keep you updated as further developments are made public.

The authors would like to thank Ali Tejpar, articling student, for his contribution to this legal update.

Footnote

[1]       With respect to former employees, the Bill provides that the employer’s obligations will be triggered if the occurrence becomes known to the employer within three months after the day on which the former employee ceases to be employed by the employer.