August 21, 2020

McLennan Ross Update for Friday

 By McLennan Ross Labour & Employment Team

What we are seeing

  • On August 20, 2020, the Government of Canada announced further economic support for unemployed or under-employed workers. A link to the official news release can be found here.
  • Details from the announcement include:
    • A further 4-week extension of the the Canada Emergency Response Benefit (CERB) thereby increasing the total benefit available to 28 weeks from 24 weeks.
    • A transitioning from the CERB to a “more generous” Employment Insurance (EI) program which will expand eligibility, implementation of a benefit rate of $400 per week, and an accessibility period of 26 weeks.
    • The announcement of three new benefits:
      • The Canada Recovery Benefit (CRB), which will provide $400 per week for up to 26 weeks to workers who are self-employed or are not eligible for EI, who still require income support, and who are available and looking for work.
      • The Canada Recovery Sickness Benefit (CRSB) will provide $500 per week for up to two weeks for workers who are sick or must self-isolate for reasons related to COVID-19.
      • The Canada Recovery Caregiving Benefit (CRCB) will provide $500 per week for up to 26 weeks per household for eligible Canadians unable to work because they must care for a child or adult dependent.
  • Employers were advised that there would be a freeze of EI insurance premiums for two years to delay (but not eliminate) the financial impact on businesses who ultimately will have to fund these enhanced benefits.

What we are hearing
  • As the federal government prorogues Parliament, there is talk of much more expansive and expensive social programs and the “decarbonization of the economy”. It is worth questioning how government can afford such additional programs if not accompanied by significant economic growth; especially in Alberta where employers are wondering how much more the Alberta economy can take.

What we are saying
  • As lawyers try to predict how courts and tribunals will factor the pandemic into it is decision making, a recent Alberta Labour Board decision, although very much fact specific, suggests it may not be considered unique. This would thereby justify variations in the application of legal principles but will be classified as giving rise to economic uncertainty no different than other recessions in the past.
  • In Canadian Union of Public Employees, Local 2559 v Children First: Community Childcare Network Society, 2020 CanLII 53305 (AB LRB), CUPE applied to be the certified bargaining agent for a unit of employees of the Society. One of the objections to the application advanced by the Society was that the Board should not certify a bargaining agent during the COVID-19 pandemic, as the Society faces a difficult and uncertain economic future, and any bargaining relationship may be doomed to fail. The Society suggested that the current circumstance was historically unique and therefore justified an equally unique exercise of discretion.
  • The Society’s argument was assertively rejected by the Board and, in doing so, the Board commented “the COVID-19 pandemic is not the first time in Alberta’s history when employers have faced significant, even existential, economic uncertainty.”
  • Although certainly not precedent setting in terms of how all courts will interpret the impact of COVID-19 on matters before it, it is a cautionary tale that employers should not expect the courts to be overly sympathetic in labour and employment disputes. 

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