On June 1, 2017, the Ontario Government introduced Bill 148: The Fair Workplaces, Better Jobs Act, 2017. Bill 148 arises just shortly after the Ministry of Labour issued its Final Report in the Changing Workplace Review on May 25, 2017. The new Bill, which has just passed the first reading stage, implements some, but not all of the 173 recommendations given in the Final Report.

The most significant amendments to the Employment Standards Act, 2000 (“ESA”) contained in Bill 148 include:

  1. Scheduling:
  • Employees who have been employed for at least three months have the right to request changes to their schedule or work location.
  • Employees must be paid for a minimum of three hours at their regular rate for shifts under three hours or for being “on call”, regardless of whether they are actually called into work. This would be required for each 24-hour period that employees are on-call. If a shift is cancelled within 48 hours of its start, employees must be paid three hours at their regular rate of pay.
  • Employees have the right to refuse working on a day they were not scheduled to work if they were provided with less than four days’ notice.
  • For unionized employees, the terms of a collective agreement will prevail if there is conflict between these new rules and the collective agreement.

2. Minimum Wage Increase:

  • $14 per hour on January 1, 2018.
  • $15 per hour on January 1, 2019, with annual inflation adjustment on October 1st of each year from 2019 onward.
  • For students under the age of 18, $13.15 per hour on January 1, 2018 and $14.10 per hour on January 1, 2019.

3. Overtime:

  • The overtime rate for employees who hold more than one position with an employer and earn different rates for those positions will be based upon the applicable rate for each overtime hour worked.

4. Public Holidays:

  • The calculation of public holiday pay will be amended to be based on the number of days actually worked in the pay period immediately preceding the public holiday. If an employee is required to work on a public holiday, the employer will be required to pay the employee public holiday pay for the day plus premium pay for each hour worked on that public holiday.

5. Right to Vacation:

  • Vacation entitlements will be increased from 2 weeks to 3 weeks for employees that have five or more years of employment with the employer.

6. Equal Pay for Equal Work:

  • Equal pay regardless of full-time or part-time status.
  • Equal pay for assignment employees of a temporary help agency who perform substantially the same work as the agency’s client.

7. Leaves of Absence:

  • Paid personal emergency leave: amended to provide personal emergency leave to all employees, not just employees of employers who regularly employee 50 or more employees.
    • Two paid days and eight unpaid days would be required, for a total of ten (10) personal emergency leave days.
    • The paid days would have to be taken before any unpaid days of personal emergency leave in a calendar year.
    • Employers will retain the right to require evidence of entitlement to these days but are not permitted to require a certificate from a qualified health practitioner.
  • Family medical leave: increased from up to 8 weeks in a 26-week period to up to 27 weeks in a 52-week period.
  • Death of a child or crime-related child disappearance leave: new section requires establishes an entitlement to up to 104 weeks if a child of an employee dies or disappears as a result of a crime.

8. Temporary Help Agencies:

  • Requires temporary help agencies to provide an assignment employee with one week’s notice or pay in lieu of notice if an assignment that was estimated to last for three months or more is terminated before the end of its estimated term, unless another assignment of at least 1 week is offered to the employee.

9. Enforcement:

  • Employment Standards Officers can order employers to pay wages directly to employees, accept security for amounts owing and issue warrants or register a lien to collect money owing.
  • The government has also indicated its intention to hire up to 175 new ESOs in order to increase the number of inspections and process complaints quicker.
  • ESOs will have flexibility and discretion to administer monetary penalties to employers who do not comply with the ESA. While Bill 148 does not state what the fines are, the government has indicated that fines will increase from $250, $500 and $1000 to $250, $700 and $1500 for non-compliant employers.
  • New provisions are added to authorize the Director to publish online the name and information of employers who are deemed to have contravened the Act.

Changes to the Labour Relations Act, 1995, include:

10. Application for Employee List:

  • Allows trade unions to apply to the Ontario Labour Relations Board to direct an employer to provide the union with a list of the employer’s employees, if the union can demonstrate that is has obtained 20% support of the employees.

11. Card Based Certification:

  • There will be card-based union certification for temporary help agencies, the building service sector, and home care and community services.

12. Review of Structure of Bargaining Units:

  • In certain circumstances, the Board may review the structure of a bargaining unit and make orders in respect of the structure of bargaining units. This could include expanding bargaining units or amalgamating separate but existing bargaining units into a single large unit.

13. Application for certification without a vote, certain industries

  • Provides for an alternative process for the certification of trade unions as the bargaining agents of employees of specified industry employers (building services industry, the home care and community services industry and the temporary help agency industry).

14. First Agreement Mediation and Mediation-Arbitration:

  • Currently, section 43 provides for first agreement arbitration where parties are unable to effect a first collective agreement. The section is re-enacted to provide for first collective agreement mediation, and also first collective agreement mediation-arbitration where the first mediation does not result in the parties entering into a collective agreement.

15. No discharge or discipline following strike or lock-out:

  • Prohibits employers, during bargaining periods, from discharging or disciplining employees in an affected bargaining unit without cause.

Conclusions:

While Bill 148 must still pass through a second and third reading to receive royal assent and come into force, it is likely that many of the amendments will become the new law. This will have significant implications for both employers and employees. On the one hand, the legislative changes will help raise the floor for all workers, particularly those in precarious positions. However, it will also have a significant impact on employers; small to medium sized business in particular will be hit by the hike in minimum wage and the increases in vacation days and personal days off. Employers are encouraged to begin reviewing their current policies and highlight areas which may need amendments. We will continue to monitor the situation and provide further updates as the Bill passes through second and third readings.