In February 2015, the Province of Ontario appointed the Honourable John C. Murray, a former judge of the Ontario Superior Court of Justice and management-side labour lawyer, and C. Michael Mitchell, a former union-side labour lawyer, as special advisers tasked with reviewing both the Ontario Employment Standards Act, 2000 ("ESA") and the Ontario Labour Relations Act, 1995 ("LRA").
Concerned about the changing nature of employment in Ontario and about the Province's ability to attract and retain business, the Ontario government has given the special advisers a mandate to consult broadly with the public and various interest groups regarding Ontario's labour and employment law regimes. Following the consultations, the special advisers will provide the Ontario government with specific recommendations for legislative change.
According to the Province, this detailed review has been prompted by a number of factors, including:
- the impact of the removal of mandatory retirement: According to the Province, the percentage of workers aged 55 and older in Ontario workplaces is projected to be 24% by 2031; up from 10% in 1997. As the workforce matures, the Province also expects a rise in the percentage of workers with disabilities;
- the growth of Ontario's labour force will be driven by the addition of immigrants: By 2031, a full 41% of workers in Ontario are expected to be foreign-born;
- the rise of the use of technology, and especially information technology, in the workplace: Since the last major revisions were made to the ESA and the LRA (in 2000 and 1995, respectively), the use of information technology (e.g. smart phones, personal computers, etc.) has proliferated in Ontario workplaces, presenting both new challenges and new opportunities;
- the growing percentage of Ontario workers employed in the service industry: As of 2014, approximately 59% of Ontario's private sector workers were employed in service-producing industries;
- the rising trend in non-standard employment: (e.g. temporary employment, self-employment, part-time employment, on-call work, telecommuting, etc.) The Province is specifically concerned about the potential vulnerability of workers holding these types of positions; and
- the decline in unionization rates: In 2009, only 19% of workers in Ontario were unionized; down from 27% in 1987.
The Employee and Union Interest Positions
Several employee and union groups have already publicly voiced their recommendations for legislative change to the special advisers. For example, The Ontario Federation of Labour has called for reforms such as:
- a $15.00/hour minimum wage;
- binding arbitration for newly certified bargaining units; and
- union certification by card check rather than a vote (e.g. if the majority of a proposed bargaining unit members sign union cards, the unit should be certified without a further vote).
The Workers' Action Centre has published its own report consisting of almost 50 recommendations for the special advisors, including the following:
- a maximum 8-hour work day, and 40-hour work week;
- a repeal of all exemptions from eligibility for overtime pay;
- a 6-month limit on the use of a temporary agency employee, after which time the temporary agency employee would automatically become a full employee of the client employer;
- a requirement that shift-work schedules be posted at least 2 weeks in advance of the applicable work period; and
- an expansion of the enforcement rights of the Ministry of Labour by allowing it to work in tandem with other government agencies to suspend registrations, permits, or licenses held by the employer for non-compliance with the ESA or LRA.
To date, however, employer groups have been less active in voicing their recommendations for change to the special advisors.
Current Status of the Review
The special advisors conducted public consultations throughout Ontario ending in September 2015. However, there may be additional opportunities for stakeholder consultations or comments prior to the preparation of the advisors' final report. Any party interested in further details about these opportunities should review the information online.
Representatives from Fasken Martineau DuMoulin LLP presented to the special advisors on September 18, 2015, and are keen to gather further input about this legeslative review and its possible impact on employers in Ontario. We invite you to share your insights with members of our Fasken Martineau team at any time.