WestJet seeks exemption to section of Canada Labour Code covering group terminations

WestJet is asking for an exemption to the section of the Canada Labour Code covering group terminations.

In a letter to federal Labour Minister Filomena Tassi, the airline says it finds itself in "unprecedented circumstances with regards to the coronavirus pandemic and the subsequent decline in air travel prompted by containment measures worldwide."

WestJet says abiding by group termination provisions in the Labour Code would be "unduly prejudicial to the interests of the company's employees and to the company, and are seriously detrimental to the operations of the company's industrial establishments." 

The airline also said "measures are already in place to assist redundant employees which have substantially the same or the same effect" as the measures in the applicable section of the code.

Division IX of the Canada Labour Code is applicable if a federally regulated company plans to terminate more than 50 employees during a four-week period. Under those circumstances, certain provisions kick in designed to protect the employees and prevent a flood of people entering the labour market all at once.

Instead of the two weeks' notice required for individuals, Division IX states employees who lose their job during a group termination are entitled to 16 weeks' notice or pay in lieu of that notice.

"Really, that's designed to try to allow people to get things in order," said Philip Graham, a lawyer specializing in employment law at Koskie Minskie law firm in Toronto.

"It also allows the employer and representatives of  the employees the opportunity to sit down and try to minimize the effects of the layoff: Is it possible to perhaps shift employees around, to furlough employees, to put them on a shared work schedule, so that they don't actually end up having to be terminated and entering the market as job seekers."

With group terminations, an employer is required to establish a joint planning committee to work out what the code calls an "adjustment program" to explore options such as Graham described; to co-operate with the Canada Employment Insurance Commission, which oversees EI; and to provide affected employees with a statement of benefits informing them of wages, vacation pay and severance pay owed.

This is the second time in less than a year that WestJet has asked for an exemption from part of the Canada Labour Code. The previous request was not related to the pandemic.

'Very concerning'

Last August, WestJet asked for exemptions to rules covering the right of employees to refuse overtime, the requirement they be given 24 hours' notice of a shift change, and the mandatory half-hour break for every five hours of work.

That request is still before the Labour Ministry, according to the union.

"There's no question that this is a very trying time for airlines around the world," said Chris Rauenbusch, president of CUPE 4070, which represents flight attendants and cabin crew members of WestJet, its regional airline Encore and its discount arm, Swoop.

"The union has to be mindful of the operating circumstances, but just to ask for a blind exemption to the Canada Labour Code is certainly something that we view as very concerning," said Rauenbusch. 

"To us it seems every time the code gets in the way, WestJet files exemptions to it. And the point of the code is to protect employees; it's not to be negated and bypassed every time an employer has a perceived need."

Rauenbusch says WestJet is trying to bypass the union, which would normally use the 16-week notice to negotiate further for things such as job retraining or new positions within the company.

WestJet laid off about half of its 14,000 workforce in March, and announced last month it would layoff a further 3,000 employees, saying its passenger loads had dropped by more than 95 per cent due to travel restrictions imposed because of the coronavirus outbreak. Since then, the airline has rehired about 6,400 employees with the help of the federal government's wage subsidy program. 

In an email to CBC News, WestJet spokesperson Morgan Bell said the airline has not made any decisions to move ahead with terminations. 

"An exemption [to the Canada Labour Code] would allow the airline flexibility to act in a timely manner in this rapidly changing and prolonged crisis. This letter is consistent with our respect for government processes and the Labour Code," said Bell.  

A spokesperson for the Ministry of Labour said the Labour Code "sets out clear rights and entitlements of employees and processes to follow" in the termination of a "large group" of employees.  

"Any decision that is made under this process will ensure workers' rights mandated under the Code are protected."