An Act to amend the Canada Labour Code, the Canada Student Financial Assistance Act, the Canada Student Loans Act and the Public Service Employment Act

S.C. 2008, c. 15

Assented to 2008-04-17

An Act to amend the Canada Labour Code, the Canada Student Financial Assistance Act, the Canada Student Loans Act and the Public Service Employment Act

SUMMARY

This enactment amends the Canada Labour Code to provide for an entitlement to a leave of absence from employment for members of the reserve force who take part in certain military activities and operations in Canada and abroad and to prohibit employers from discriminating against employees on the basis that they are members of the reserve force.

It also amends the Canada Student Financial Assistance Act and the Canada Student Loans Act to authorize the Governor in Council to make regulations exempting members of the reserve force from the payment of interest on their loans or deferring the payment of principal or interest on those loans. It also amends those Acts to provide for provinces to be compensated for any loss of interest.

It also amends the Public Service Employment Act to provide federal public service employees who are members of the reserve force with the right to return to their position at the end of a leave of absence that they take in order to take part in an operation or activity referred to in the Canada Labour Code.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. L-2CANADA LABOUR CODE

 The Canada Labour Code is amended by adding the following after section 247.4:

Division XV.2Leave of Absence for Members of the Reserve Force

Marginal note:Entitlement to leave
  • 247.5 (1) An employee who is a member of the reserve force and has completed six consecutive months of continuous employment with an employer — or a shorter period that is prescribed for a class of employees to which the employee belongs — is entitled to a leave of absence from employment to take part in the following operations or activities:

    • (a) an operation in Canada or abroad — including preparation, training, rest or travel from or to the employee’s residence — that is designated by the Minister of National Defence;

    • (b) an activity set out in the regulations;

    • (c) annual training for the prescribed period or, if no period is prescribed, for a period of up to 15 days;

    • (d) training that they are ordered to take under paragraph 33(2)(a) of the National Defence Act;

    • (e) duties that they are called out on service to perform under paragraph 33(2)(b) of the National Defence Act;

    • (f) service in aid of a civil power for which they are called out under section 275 of the National Defence Act; or

    • (g) treatment, recovery or rehabilitation in respect of a physical or mental health problem that results from service in an operation or activity referred to in this subsection.

  • Marginal note:Designation and delegation

    (2) The Minister of National Defence may, in consultation with the Minister, designate an operation for the purposes of paragraph (1)(a) and may authorize another person to do so.

  • Marginal note:Effect

    (3) A designation takes effect on the day on which it is made or on an earlier or later day that is fixed by the Minister of National Defence or the other person. The Minister of National Defence or the other person may fix the day on which the designation ceases to be in effect.

  • Marginal note:Exception

    (4) Despite subsection (1), an employee is not entitled to a leave of absence under this Division if, in the opinion of the Minister, it would adversely affect public health or safety or would cause undue hardship to the employer if the employee, as an individual or as a member of a class of employees, were to take leave.

Marginal note:Notice to employer
  • 247.6 (1) An employee who takes a leave of absence under this Division shall

    • (a) unless there is a valid reason for not doing so, give at least four weeks’ notice to the employer before the day on which the leave is to begin; and

    • (b) inform the employer of the length of the leave.

  • Marginal note:If there is a valid reason

    (2) If there is a valid reason for not providing notice in accordance with paragraph (1)(a), the employee shall notify the employer as soon as practicable that the employee is taking a leave of absence.

  • Marginal note:Change in length of leave

    (3) Unless there is a valid reason for not doing so, an employee who takes a leave of absence under this Division shall notify the employer of any change in the length of the leave at least four weeks before

    • (a) the new day on which the leave is to end, if the employee is taking a shorter leave; or

    • (b) the day that was most recently indicated for the leave to end, if the employee is taking a longer leave.

  • Marginal note:In writing

    (4) Unless there is a valid reason for not doing so, any notice or other information to be provided by the employee to the employer under this section is to be in writing.

Marginal note:Request for proof
  • 247.7 (1) Subject to subsection (2), if the employer requests proof that a leave of absence is taken under this Division, the employee shall provide the employer with the prescribed document, if any, or with a document that is approved by the Chief of the Defence Staff who was appointed under subsection 18(1) of the National Defence Act.

  • Marginal note:No prescribed or approved document

    (2) If no document is prescribed, or approved by the Chief of the Defence Staff, the employee shall, on request, provide the employer with a document from the employee’s commanding officer specifying that the employee is taking part in an operation or activity referred to in paragraphs 247.5(1)(a) to (g).

  • Marginal note:Timing

    (3) Unless there is a valid reason for not doing so, the employee shall provide the document referred to in subsection (1) or (2) within three weeks after the day on which the leave begins.

Marginal note:Return to work postponed
  • 247.8 (1) If the employee does not notify the employer at least four weeks before the day on which the leave that is taken under this Division is to end, the employer may postpone the employee’s return to work for a period of up to four weeks after the day on which the employee informs the employer of the end date of the leave. If the employer informs the employee that their return to work is postponed, the employee is not entitled to return to work until the day that is indicated by the employer.

  • Marginal note:Subsection (1) does not apply

    (2) Subsection (1) does not apply if the employee notifies the employer in accordance with paragraph 247.6(1)(b) before the leave begins and if the length of the leave is not changed after the leave begins.

  • Marginal note:Deemed part of leave

    (3) The period of postponement referred to in subsection (1) is deemed to be part of the leave.

Marginal note:Annual vacation

247.9 Despite any term or condition of employment, an employee may postpone their annual vacation until after the day on which a leave of absence that is taken under this Division ends.

Marginal note:Continuous employment — benefits
  • 247.91 (1) For the purposes of calculating the benefits of an employee who takes a leave of absence under this Division, employment on the employee’s return to work is deemed to be continuous with their employment before the leave.

  • Marginal note:Seniority

    (2) The seniority of an employee who takes a leave of absence under this Division shall accumulate during the leave.

Marginal note:Application of section 189

247.92 Section 189 applies for the purposes of this Division.

Marginal note:Resumption of employment in same position
  • 247.93 (1) At the end of a leave of absence that is taken under this Division, the employer shall reinstate the employee in the position that the employee occupied on the day before the day on which the leave begins.

  • Marginal note:Comparable position

    (2) If for a valid reason an employer is not able to reinstate the employee in that position, they shall reinstate the employee in a comparable position with the same wages and benefits and in the same location.

Marginal note:Not able to perform work

247.94 Subject to the regulations, if an employee is not able to perform the functions of the position that they occupy before the leave begins — or those of a comparable position, with the same wages and benefits and in the same location — the employer may assign them to a position with different terms or conditions of employment.

Marginal note:Wages or benefits affected by reorganization
  • 247.95 (1) If, during a leave of absence that is taken under this Division, the wages or benefits of the group of employees of which an employee is a member are changed as part of a plan to reorganize the industrial establishment in which that group is employed, the employee is entitled, on reinstatement under this section, to receive the wages and benefits in respect of that employment that that employee would have been entitled to receive had that employee been working when the reorganization took place.

  • Marginal note:Notice of change in wages or benefits

    (2) The employer of an employee who is on leave and whose wages or benefits would be changed as a result of the reorganization shall, as soon as practicable, send a notice to the employee at their last known address.

Marginal note:Prohibition — employee
  • 247.96 (1) No employer may dismiss, suspend, lay off, demote or discipline an employee because they are a member of the reserve force or intend to take or have taken a leave of absence under this Division or take into account the fact that an employee is a member of the reserve force or intends to take or has taken a leave of absence under this Division in a decision to promote or train them.

  • Marginal note:Prohibition — future employee

    (2) No person may refuse to employ a person because they are a member of the reserve force.

Marginal note:Regulations

247.97 The Governor in Council may make regulations for carrying out the purposes of this Division and, without restricting the generality of the foregoing, may make regulations

  • (a) specifying the absences that are deemed not to interrupt continuity of employment for the purpose of subsection 247.5(1);

  • (b) specifying what constitutes or does not constitute an operation for the purposes of paragraph 247.5(1)(a);

  • (c) setting out the activities for the purposes of paragraph 247.5(1)(b);

  • (d) defining “annual training” for the purposes of paragraph 247.5(1)(c);

  • (e) limiting the duration of the treatment, recovery or rehabilitation referred to in paragraph 247.5(1)(g) or setting out the terms or conditions for the application of that paragraph;

  • (f) specifying what constitutes or does not constitute undue hardship for the purposes of subsection 247.5(4);

  • (g) specifying what constitutes or does not constitute a valid reason for the purposes of subsection 247.6(1), (2), (3) or (4), 247.7(3) or 247.93(2);

  • (h) specifying the circumstances in which section 247.7, subsection 247.8(1), section 247.9 or subsection 247.91(2) do not apply;

  • (i) specifying the circumstances in which an employer may not assign an employee to a position with different terms or conditions of employment for the purposes of section 247.94;

  • (j) prescribing the maximum duration of a leave of absence that may be taken under this Division;

  • (k) specifying the maximum number of leaves of absence — or the maximum duration of leave — that may be taken under this Division within a given period;

  • (l) prescribing the classes of employees that are not entitled to a leave of absence under this Division if the Governor in Council is satisfied that the fact of taking leave would cause unreasonable consequences; and

  • (m) prescribing the circumstances in which classes of employees are not entitled to a leave of absence under this Division.