On June 1, 2017, the Ontario government introduced Bill 148 before the Legislative Assembly. It proposes significant changes to the province's Employment Standards Act, 2000 (ESA) and the Labour Relations Act, 1995 (LRA). The changes are the result of public consultations and the work of Special Advisors appointed by the government. Bill 148 is moving at lightning speed and is now already in the hands of the Standing Committee on Finance and Economic Affairs. Following a brief public consultation period this summer, further amendments were proposed by the Committee in late August.
The most significant of the anticipated legislative changes are outlined below. Identified in italic are the additional Aug. 21 amendments.
Proposed Changes to Employment Standards
Increased minimum wage
With few exceptions, the minimum wage will be raised to $14/hour as of 2018, and to $15/hour as of 2019, making Ontario the most generous province in that regard alongside Alberta. Wages would continue to increase with inflation.
Equal pay for equal work for casual, part-time, temporary & seasonal employees
These changes aim to ensure not only that these employees receive the same salary as their full-time coworkers (with some exceptions such as seniority), but that they also be able to ascertain this by requesting a review of their salary if they believe they don't, without fear of reprisal.
Temporary help agency (THA) employees would be entitled to both the same wages as their permanent counterparts and to notice of termination (or pay in lieu) of one week if their assignment is scheduled to last more than three months.
Amendments were introduced to clarify the seniority exception so as to allow for a system based on accumulated hours worked to justify a wage differential.
Employees would be entitled to request schedule or location changes after three months of service. Employers are not required to accept – the amendment aims to protect employees making such requests against reprisals.
Employees will have the right to refuse shift work or "on call" work presented to them with less than 96 hours of notice. Exceptions were introduced for requests to "deal with an emergency," to 'reduce a threat to public safety" or "for such other reasons as may be prescribed" by regulation. A dialogue with some sector-specific employers could lead to regulation meant to lessen the impact of these changes.
Employees with shifts cancelled in less than 48 hours or employees reporting to work only to work less than three hours (where they normally work more than that) will be entitled to three hours of pay.
"On call" employees who are ultimately not called into work would also be entitled to three hours of pay per 24-hour period.
Employee misclassification as contractors
Employers faced with a dispute on the classification of a contractor will now have the burden of proving the individual is not an employee. Employers who fail to do so could now be faced with prosecution, public disclosure of a conviction and fines.
The legislative amendments, slated to come into force on Jan. 1, 2018, will no doubt cause employers to think carefully before engaging contractors.
Facilitated joint liability of related businesses
As of Jan. 1, 2018, it will now be easier to take action against a related business for the ESA violation of another business. The current criteria of "intent or effect" of defeating the ESA will be eliminated, making it easier to collect monies from third-party related businesses.
Increased paid vacation
Come Jan. 1, 2018, Ontario will now join those very few Canadian jurisdictions that offer more generous vacation entitlements: employees will be entitled to three weeks of paid vacation after five years of service.
Paid emergency leave
All employers will be required to grant 10 days of personal emergency leave days to employees, regardless of the size of their workforces. Significantly, two of these personal emergency days must now be paid and employers will no longer be allowed to request sick notes from qualified health practitioners but can still require employees to provide "reasonable evidence" in that regard.
Extended family medical leaves
The leave, used to provide support or care to dying family members, would be increased to 27 weeks in a 52-week period as of Jan. 1, 2018.
Domestic or sexual violence leave
A new domestic or sexual violence leave without pay of up to ten days and 15 weeks per year would be created, with specific purposes outlined in the legislation. The employee would have the option of either taking weeks of leave or days of leave, as appropriate in the circumstances.
Extended parental leave
The period of parental leave would be extended from 35 weeks (if the employee also took a pregnancy leave) to 61 weeks and from 37 weeks (if the employee did not take a pregnancy leave) to 63 weeks. This amendment is consistent with recent changes to the federal Employment Insurance Act that have not yet come into force.
Focus on enforcement
Various measures are anticipated in connection with enforcement of the legislation. Notably, increased penalties for non-compliance and facilitated wage collection, whether by the government or an authorized collector.
Beyond these legislative amendments, the government has also signalled its intention to invest heavily in enforcement of the ESA by hiring up to 175 ESA officers who are responsible, notably, for conducting workplace audits and investigating complaints.
Ontario's Ministry of Labour has also announced its intention, as part of this overhaul, to conduct a more fulsome review of various ESA exemptions and special industry rules as early as this fall. This review would include exemptions in place for managers and supervisors.
Proposed Changes to the Labour Relations Act
Return to card-based union certification model
Certification will now be card-based in specific industries: the temporary help agency industry, the building services sector, and the home care and community services industry.
As noted by the Special Advisors, card-based certification outcomes are dramatically better for unions and these changes will presumably have a significant impact in these workplaces.
Facilitating automatic certification
Unions can now be more easily certified when an employer violates the LRA.
First contract arbitration
The amendments aim to make first contract arbitration more accessible, along with mediation.
Access to employee lists and contact information
A union will now be able to file an application with the Ontario Labour Relations Board (OLRB) to have access to an employee list. If the OLRB is satisfied that the union has garnered the support of 20 per cent of employees it will have a right to access employee lists. This list must include the name of each employee in the proposed bargaining unit, phone number and personal email if it was provided to the employer.
If they disagree with the union's employee estimate, employers will be required to provide a statutory declaration setting out the number of individuals that may reasonably be included in the proposed bargaining unit.
The change will facilitate unionizing, as unions will now know how many ballots they need to file for an application or to win a vote.
Bargaining unit structure where multiple units
Similar to the federal sector and of interest to employers, the OLRB will be empowered to change the structure of bargaining units where they are no longer appropriate, and to consolidate newly certified bargaining units under a single employer after the filing of an application by employers or unions.
Enhanced protection regarding lawful strikes/lockouts and just cause
The current six-month limitation for a right to return to work after a legal strike or lockout would be removed.
Equally significant is the requirement for employers to prove just cause when disciplining or firing an employee from the date employees are in the position of a lawful strike/lockout until a first collective agreement is reached, as well as during the period between certification and conclusion of a first contract.
Bill 148 will continue to make its way in the Legislative Assembly this fall. It is likely that this version of the Bill will become law, given the government's majority and the speed at which it has been moving. However, further amendments are not impossible and employers should therefore continue to monitor this matter closely.