LEAF and its Branch, LEAF Edmonton, have sent a submission to the Alberta Workplace Legislation Review recommending improvements to Alberta’s Employment Standards Code (ESC).
LEAF recommended changes in the following areas to ensure working women in Alberta are treated in accordance with equality rights guarantees:
- removing eligibility thresholds for family-related leaves
- removing unilateral employer authority to require a woman to start maternity leave
- providing for leave in circumstances of pregnancy termination
- providing for accrual of seniority, service, and benefits during family-related leaves
- providing for the right to request flexible work arrangements
- establishing a task force to investigate solutions to the problem of work-family conflict.
The workplace is a key site of gender inequality in Canada, and the law can play an important role in rectifying gender disadvantage, LEAF noted. Employment standards legislation is particularly important, since it is designed to establish minimum standards for those without bargaining power.
The current threshold for eligibility for maternity leave, parental leave, or compassionate care leave under the ESC is non-compliant with equality protections under Alberta’s human rights legislation, the Charter of Rights and Freedoms, or Canada’s international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), LEAF said. The ESC requires 52 weeks of continuous employment for the same employer before a woman is eligible for maternity leave, parental leave, or compassionate care leave. This can exclude women in temporary positions or women who have changed jobs during the year. The most severe impact of these exclusions is on the most vulnerable women, LEAF noted. There are provinces in Canada with no eligibility thresholds for maternity or parental leave, and that is the approach that should be taken, LEAF recommended.
The section of the ESC that permits an employer to require a pregnant employee to commence maternity leave if the pregnancy interferes with the performance of her duties should be repealed, LEAF recommended. That section fails to recognize the employer’s duty to accommodate the employee by exploring modification of duties or assignment to an alternative position. It also fails to provide for the pregnant employee’s access to sick leave and associated benefits where there is such plan at the workplace.
LEAF also recommended that the ESC should provide for:
- leaves during circumstances of pregnancy termination and
- continuing accruals of seniority, service, pensionable service, and other benefits during family-related leave periods.
The current provisions in the ESC, which provide for reinstatement only at the level of accruals at the point the leave started, codifies a structural, systemic discrimination whereby the woman loses economic and job status because of her role in childbearing or other family responsibility. This loss will have effect over her lifetime, LEAF said. Many other jurisdictions in Canada do provide for accruals during pregnancy/maternity leave and other family-related leaves.
Another broad issue that undermines women’s equality is lack of control over work scheduling, the LEAF submission noted. Women are disproportionately impacted by workplace scheduling practices that do not permit them to organize their paid and unpaid working time and meet their family care responsibilities. Provisions of the ESC which give employers undue control over hours of work, permit the scheduling of mandatory overtime, and allow scheduling and schedule changes to take place on very short notice have a disparate impact on women, and increase their workplace and lifetime disadvantage. In addition, women with family care obligations may require adjustments to existing work schedules on both a short-term and long-term basis, both to accommodate the scheduling of care arrangements and to deal with family emergencies.
LEAF recommended that the ESC be amended to provide employees with the right to request flexible work arrangements, including flexible start and finish times and the ability to work from home. LEAF also recommended that a task force be established immediately to investigate proactive measures for enabling employees to better deal with work-family conflict.
LEAF referred to the brief submitted to the Workplace Legislation Review by the Alberta Federation of Labour, which recommended inclusion of additional leaves in family-related and other circumstances.
The LEAF submission is here.
About Women’s Legal Education and Action Fund (LEAF)
Since April 17, 1985, when equality rights were enshrined in sections 15 and 28 of the Charter of Rights and Freedoms, LEAF has worked toward equality for women and girls. LEAF intervenes in key cases to ensure that when courts interpret equality rights, there will be a systemic improvement in women’s lives. For more information about LEAF, visit www.leaf.ca.