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Archived - Discussion Paper on the Review of Labour Standards in the Canada Labour Code

I. Responding to the Evolving Workplace

H. Communicating with Employees

1. Written Notice of Employment Terms

Commission Recommendations:

• Employers should be required by regulation to provide employees who are not covered by a collective agreement with a written notice setting out their rates of pay, hours of work, general holidays, annual vacations and conditions of employment. The written notice should be provided at the time of hiring and updated each time material changes occur or at periodic intervals.
• The notice should also briefly advise employees of the existence of the Canada Labour Code and direct their attention to a toll-free number and a website where they can obtain further information. The Labour Program should provide a sample or standard form notice that can be used or adapted to meet employers’ requirements.
• The notice should not be considered a contract of employment, but treated as prima facie evidence of the agreement between the parties. For the purposes of compliance proceedings under Part III, if the employer fails to produce initially, or cannot produce, a copy of the written notice of the terms of employment, the employee’s recollection of the terms should be presumed accurate, unless the employer adduces persuasive evidence to the contrary. (R. 5.1-5.4)

There is currently no requirement to provide employees with a written statement of employment terms. The Minister has the authority under Part III to make regulations requiring employers to issue notices that contain information on matters such as hours of work, rest periods and other conditions of employment; however, no regulations have been made to date. Nonetheless, employers are required under Part III to provide employees with detailed pay statements and to create and maintain comprehensive records of employment. Employers must also post a notice that advises employees of the existence of the Canada Labour Code and contains a web address where they can obtain further information (this notice is prescribed in Schedule II to the Canada Labour Standards Regulations).

On the one hand, a requirement to provide each worker with a detailed written notice of employment terms may be administratively burdensome for an employer. In order for the statement to continue to be accurate, employers would have to update it at regular time intervals or whenever material changes occur, for instance in the event the employee switches from full to part-time or begins working compressed hours. It may also prove difficult to enforce a statutory requirement to provide and continually update a written statement of the terms of employment. This is perhaps why only one province (Newfoundland and Labrador) requires employers to provide a written statement of the terms and conditions of employment, which only needs to be done at the time of hiring.

The principal argument for giving employees a notice of employment terms is that it will help them to understand their entitlements and will therefore facilitate enforcement of Part III. That is, because employees will have more information about their terms and conditions of employment, including their entitlements under Part III, they will be in a better position to enforce their rights. However, the notice proposed by the Commission would not necessarily be useful for enforcement purposes. This is because it could contain information that is not relevant to Part III. For instance, the notice might state that the employee is entitled, beginning on day one of employment, to six weeks of annual vacation. The Labour Program only has the mandate to enforce two weeks of annual vacation after one completed year of employment (although the employee could, of course, seek recourse in civil court). It is also unlikely that many employers would explicitly set out in writing that they are providing working conditions that fall below the standards in Part III.

It has also been argued that the records that employers are required to keep are sufficient for proceedings under Part III, since these must include relevant information such as the date of commencement of employment, the rate of wages, particulars of any changes in the rate, actual earnings, hours of work and the dates of commencement and termination of leave. Employers must keep these records until 36 months after the date of termination of employment and provide them to Labour Program inspectors upon request.

On the other hand, some would say that it is sound business practice to reduce the employment relationship to writing, in order to prevent misunderstandings or even disputes. Legislation in the United Kingdom, Ireland and New Zealand requires employers to provide employees with a written statement of employment particulars at the beginning of the employment relationship.

For instance, all employees in the UK whose employment lasts one month or more are entitled to receive a written statement containing a summary of their main employment conditions from their employer within two months of the commencement of their employment. Employees must also receive a written notification whenever a change occurs in one of their employment conditions mentioned in the statement. An employee who is dissatisfied because he or she has received no written statement or notification of change may refer the matter to an employment tribunal. The same applies if a question arises as to the accuracy or sufficiency of employment conditions contained in such documents. In either case, the tribunal will determine what information the employee should have been given. The decision of the tribunal will have effect as if the correct information had been included in a written statement or in a notification of change issued by the employer.

If the Commission’s proposal is accepted, the UK legislation may be a useful reference in determining what should be included in written notice of employment terms, how often it should be updated, and how it should be enforced.

For discussion:

• Would it be appropriate to require employers to provide employees with a written notice of employment terms at the beginning of the employment relationship? If so, what should the notice include? Should employers be required to update the notice at regular intervals and, if so, at what intervals? Should employers be required to update it in the event of material changes? If so, what would constitute a material change?
• Should a notice be treated as a contract of employment or simply as evidence of an agreement? What, if any, consequences should there be for an employer who fails to meet the notice requirements?
• Should employers who provide their employees with a written general policy on employment in the workplace be exempted from an obligation to provide a written notice of employment terms?

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Date Modified:

2012-02-15