Overview

On October 23, the Ontario Government introduced Bill 47, Making Ontario Open for Business Act, 2018 ("Bill 47"). The stated purpose of the legislation is to remove “the worst burdens that prevent Ontario businesses from creating jobs while expanding opportunities for workers.” Less than a month later, Bill 47 received Royal Assent and significant changes to Ontario labour and employment legislation will take effect on January 1, 2019.

More specifically, Bill 47 will amend or repeal parts of the Ontario Employment Standards Act, 2000 (ESA), the Ontario Labour Relations Act, 1995 (OLRA) and the Ontario College of Trades and Apprenticeship Act, 2009 (OCTAA). What is particularly noteworthy is that Bill 147 reverses several changes (and proposed changes) of the former government's Bill 148, Fair Workplaces, Better Jobs Act, 2017 ("Bill 148"), which we discussed in a series of blog posts and which started to take effect a year ago.

This blog post is focused on the Bill 47 changes to certain provisions of the ESA, which we have summarized below. These are included alongside summaries of those provisions both pre-Bill 148 and post-Bill 148 for full context.

Changes to the ESA Under Bill 47

Unless otherwise noted, the Bill 47 changes below will come into force on January 1, 2019.

ESA Provision

Pre-Bill 148 (i.e., ESA in 2017)

Post-Bill 148 (i.e., ESA in 2018)

Post-Bill 47 (i.e., ESA in 2019)

Personal Emergency Leave

Up to 10 unpaid days per year to deal with a personal emergency.

Only available to an employee if the employer has at least 50 employees.

Employer had ability to require an employee to provide a medical note in support of leave.

Ten days, but two of the days must be paid.

Available to all employees, regardless of the size of the workplace.

Employer can require “reasonable evidence” of a need to take this leave but could no longer require a medical note.

(As of January 1, 2018)

The personal emergency leave provisions are repealed and replaced by the following unpaid days:

  • Three days for “sick leave” (personal illness, injury or medical emergency);
  • Three days for “family responsibility leave” (illness, injury, medical emergency or other urgent matter concerning prescribed individuals);
  • Two days for “bereavement leave” (related to the death of prescribed individuals).

Employers may also require employees to provide “evidence reasonable in the circumstances” for leaves (i.e., which includes providing a medical note).

Minimum Wage (General) $11.60 per hour (as of November 2017)

$14.00 per hour (as of January 1, 2018)

$15.00 per hour (as of January 1, 2019)

General minimum wage will be held at $14.00 per hour until October 1, 2020. Annual increases to minimum wage will restart in October 2020, and will be based on inflation.
Scheduling, Being “On Call” and Cancellations No relevant provisions.

Minimum of three hours’ pay for being on-call (even if not called to work).

Employees can refuse an employer’s request to work or be on call for an unscheduled day if the request is made less than 96 hours before the time the employees are expected to start work or be on call.

Right to receive wages for three hours of work if a scheduled work day or on call period is cancelled with less than 48 hours’ notice.

Employees can request changes to schedule or work location after three months of employment.

(As of January 1, 2019)

These provisions are completely repealed.

Public Holiday Pay Formula

(Total regular wages earned during the four weeks before the week of the public holiday + vacation pay, if any) ------------------ 20

(Total regular wages earned during the pay period before the public holiday) ------------------ Number of days worked in the prior pay period (As of January 1, 2018)

Reversion to the pre-Bill 148 formula. (Note: This had already been amended by regulation in July 2018)

Equal Pay for Equal Work Employers must pay men and women performing similar work equally.

Employers cannot pay different “rates of pay” based on “employment status” (i.e., part-time, full-time, fixed-term, seasonal or casual) where:

  • employees perform substantially the same kind of work in the same establishment;
  • their performance requires substantially the same skill, effort and responsibility; and
  • they work under similar working conditions.
(As of April 1, 2018)

Equal pay for equal work provisions related to gender will remain.

Equal pay for equal work provisions related to “employment status” and “assignment employee status” are repealed.

Employees’ right to request a review of their rate of pay is also repealed.
Employee/Contractor Classification No express prohibition on misclassification of employees. Statutory prohibition on misclassification of employees added and “reverse onus” for employer to prove that a person is a contractor and not an employee. The prohibition on the misclassification of employees will remain, but, the “reverse onus” provision of Bill 148 is repealed.

Important Takeaways for All Employers

  • Review current policies/handbook to ensure compliance with the Bill 47 changes coming into effect on January 1, 2019.
  • Review employment agreements, policies and handbook to consider if there are changes implemented as a result of Bill 148 that employers now wish to eliminate. For example, some employers modified their employment agreements and leave policies in light of the two paid emergency leave days under Bill 148. We suggest you consult with counsel if you intend to remove such benefits.
  • Human resources to ensure managers/supervisors are provided with instructions on the new ESA provisions that may affect the daily work of managers/supervisors such as: (i) new sick/family responsibility/bereavement leave provisions, (ii) elimination of equal pay for equal work on employment status and ability to request pay rate review and (iii) the repealing of scheduling/being on call cancellation provisions that were to take effect on January 1, 2019.