As the U.K.’s new flexible working bill receives royal assent, Edward Majewski, partner at Ogletree Deakins International LLP, says similar legislation would benefit employers and employees in Canada.
The Employment Relations (Flexible Working) Act 2023, which received royal assent last month, sets out the right of employees to request variations to particular terms and conditions of employment, including working hours, times and locations. It also aims to provide clear and consistent guidance on how employers should be administering flexible working arrangements.
For most Canadian employees, flexible work is an ad-hoc arrangement, unless they’re unionized and have a collective agreement in place, says Majewski. “What I don’t like about the ad-hoc approach is that it can lead to allegations of favouritism or inconsistency in terms of how the flex work policy is applied.”
In Canada, there isn’t much in place in terms of flexible working legislation, he adds, noting that could change. “There is a flexible work regime under the Canada Labour Code, which applies to federally-regulated employers. But I would surmise, because of [the coronavirus pandemic], it was kind of moot because almost everybody had to move to flexible work. So it becomes an interesting question whether it might assume more prominence now that [the pandemic] seems to be waning.”
Another relevant piece of employment legislation is the Four-Day Work Week Act, 2022, a private member’s bill that passed its first reading in Ontario earlier this year, but Majewski doesn’t see the act passing into law.
On the other hand, Ontario’s right-to-disconnect legislation took effect in June 2022, requiring employers with 25 or more workers to have a written policy about employees disconnecting from their job at the end of the workday. But Majewski believes it’s more of a procedural obligation than a substantive right.
“In simple terms, Ontario hasn’t become like France, where people legally have to check out at a certain time. We do have maximum hours of work rules that have to be adhered to and the added cost of overtime. Ontario doesn’t have daily overtime, so it tends to be just a weekly consideration, but some other provinces do have daily overtime. These things create a natural [deterrent] for employers to not encourage employees to work incessantly.”
However, Majewski says most of his employer clients are already rolling out flexible working policies or remote work agreements in an effort to make everything transparent for employees. These employers have a genuine interest in making sure their staff have an appropriate work-life balance, he adds, but legislation might be required for employers that are less progressive.
“For my clients right now, the hot topic is remote work specifically and, coming out of the pandemic, to what degree employees can insist on a perpetuation of being able to work from home. So it’s kind of a touchy subject with clients. And there’s nothing in black and white that gives employees a substantive right to work from home. Aside from situations that might fall under the Ontario Human Rights Code, for example, where there’s accommodation issues, whether it’s disability or family status.”