The Saskatchewan Government has introduced The Saskatchewan Employment Amendment Act, 2021 (the “Amendment Act”), which proposes three amendments to The Saskatchewan Employment Act (the “SEA”). The Amendment Act received Royal Assent on November 30, 2021, and comes into force on January 1, 2022.
First Proposed Amendment: Supervisory Employees and Bargaining Units
The Amendment Act includes a proposal to reverse previous amendments to the SEA concerning supervisory employees that came into force in 2014 (the “2014 Amendments”). The 2014 Amendments prohibited supervisory employees from being in the same bargaining unit as the employees they supervised unless the employer and union made an irrevocable election to allow supervisory employees in the bargaining unit. The 2014 Amendments permitted supervisory employees to be in a bargaining unit of only supervisory employees.
The proposal in the Amendment Act expressly permits supervisors to participate in a union, either alongside those they supervise or as a separate bargaining unit comprised only of supervisors. If the Government passes the the proposed amendments, the Saskatchewan Labour Relations Board (the “Board”) would no longer be required to exclude supervisory employees from a bargaining unit of other employees, unless the employer and union have entered into an irrevocable election. The Board will also have authority to determine the appropriate bargaining unit, which may include a unit of supervisors and those they supervise.
Further, the amendment cancels existing irrevocable elections on this subject, allowing future amendments to certification orders should the need arise. Additionally, the amendment includes transitional provisions, which allow the Board to hear applications from employers or unions to amend existing certification orders which exclude supervisors from current bargaining units.
Second Proposed Amendment: Defining Harassment
Secondly, the Amendment Act broadens the definition of “harassment” by adding language to the Occupational Health and Safety provisions of the SEA, expressly indicating that any unwelcome conduct, comment, display, action or gesture of a sexual nature constitutes harassment.
When the legislation is passed, employers will need to update their harassment policies to include the amended definition of “harassment” so that the harassment policy is consistent with the requirements of the Occupational Health & Safety Regulations.
Third Proposed Amendment: Liability Protection
Finally, the Amendment Act introduces liability protection for public and private sector employers that act or make a good faith effort to act in accordance with the new COVID-19 emergency regulations, so long as the employer’s act or omission does not constitute gross negligence.
What the Supervisor Changes Mean for Employers
The supervisory amendments in the Amendment Act provide clarification with respect of supervisory employees, both for new and established bargaining relationships. (See blog post: SK Labour Relations Board Changes Approach to Supervisory Employees for further information on Board’s existing interpretation of its authority).
Furthermore, in permitting an additional category of employees to join a bargaining unit, employers will be responsible for demonstrating the need to exclude employees rather than relying on a legislated exclusionary provision to limit union representation in the workplace.
Those affected by the transitional provisions on irrevocable elections regarding supervisory employees will have those elections deemed null and void upon this amendment’s coming into force. Employers should review any irrevocable election to allow supervisory employees in the bargaining unit, and must act if they intend to alter this election.
The MLT Aikins labour and employment lawyers would be pleased to assist you with navigating the changes brought by the amendments. Please contact a member of our Saskatchewan labour and employment team for more information.
Note: This article is of a general nature only. Laws and government programs may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.