On May 23, 2017, the Ontario government released The Changing Workplaces Review – Final Report, which recommends a sweeping overhaul to Ontario’s employment standards and labour relations legislation. The government has promised to move quickly on the recommendations which, if adopted, will have a significant impact on employers in Ontario. While there are numerous proposed amendments, the key recommendations are summarized below.
- Unified Legislation: The Employment Standards Act, 2000 (ESA), Labour Relations Act, 1995 (LRA) and Occupational Health and Safety Act should be combined into a single act called the Workplace Rights Act, to simplify education, interpretation and enforcement.
- Awareness: Both employers and employees should be educated on their rights and obligations under the legislation. Raising the level of knowledge and general consciousness of such rights and responsibilities will result in greater compliance with the law.
- Enforcement: In addition to the existing complaints-based system, there should be a proactive enforcement strategy, including spot checks, audits and targeted inspections. As well, there should be strong sanctions and deterrence for non-compliance, including increased administrative penalties.
- Definition of “Employee”: The term “dependent contractor” should be added to the definition of “employee” to reduce the number of workers who are misclassified as independent contractors. Where there is a dispute about a worker’s classification, the burden will be on the employer to prove that the worker is not an employee.
- Equal Pay for Equal Work: The pay differential between full-time workers and comparable part-time, casual, temporary, contract, and seasonal employees should be eliminated (unless based on objective grounds such as seniority and merit).
- Exemptions: The current exemptions and special rules under the ESA should be reviewed and revised to ensure that the ESA applies to as many employees as possible. In particular, the managerial and supervisory exemption should be revised so that both salary and job duties are considered. As well, the student minimum wage and student exemption from the “three hour rule” should be eliminated. Further, interns, trainees and Crown workers should no longer be excluded from the minimum employment standards.
- Scheduling: There should be rules regulating work schedules, particularly in the retail and fast food sector. As well, employees should be entitled to request changes in work schedules or location, without retaliation by the employer.
- Vacation: Vacation entitlements should be increased to three weeks per year after five years of employment.
- Hours of Work: Employers should no longer be required to obtain Ministry of Labour approval for employees to work 48–60 hours a week.
- Public Holiday Pay: Calculation of public holiday pay should be simplified.
- Leaves of Absence:
- Personal emergency leave of up to seven days should be extended to all employees (not just those in workplaces with 50 or more employees). If an employee is required to provide medical evidence in support of a personal emergency leave request, the employer should be required to pay for the doctor’s note.
- Bereavement leave of up to three unpaid days should become an independent entitlement.
- Family medical leave should be increased from eight weeks in a 26-week period to 26 weeks in a 52-week period.
- Crime-related child death or disappearance leave should be expanded to include the non-crime related death of a child.
- Exclusions: Certain groups of employees that are currently excluded from the LRA should be covered including, but not limited to, domestics, architects, dentists, lawyers and doctors.
- Consolidation and Amending of Bargaining Units: The Ontario Labour Relations Board should have the power to modify and/or consolidate bargaining units.
- Broader-Based Bargaining: Certified or voluntarily recognized bargaining units of different franchisees of the same franchisor by the same union in the same geographic area should be required to bargain together.
- Successor Rights: Successor rights protect employee and union rights where there is a sale of a business. These rights should be extended to the building services industries (i.e., security, food services, cleaning, etc.).
- Temporary Help Agencies: Individuals assigned by temporary help agencies to perform work for clients of the agencies should be deemed to be employees of the clients rather than the agencies.
- Prosecutions and Penalties: Maximum fines for contravention should be increased to C$5,000 for individuals and C$100,000 for employers and unions.
NEXT STEPS FOR EMPLOYERS
It is important to note that The Changing Workplaces Review – Final Report contains recommendations only. It is not yet known which proposed legislative changes will be accepted, but the provincial government is expected to announce its formal response within the next week.
If the recommendations are accepted and the legislation is amended, employers should take the following next steps:
- Review and update existing employment agreements, policies, practices and employee handbooks.
- As a best practice, implement training programs to educate management and employees on their rights and obligations under the legislation and ensure greater compliance with the law.
- Consider whether any contractors currently engaged fall within the dependent contractor category such that they are entitled to the minimum employment standards and protections under the legislation.