Introduction

On 23 October 2018 the Ontario government introduced Bill 47 – the Making Ontario Open for Business Act 2018 in the provincial Legislative Assembly.

Once passed, the bill will make substantial changes to the province's employment standards and labour relations legislation, including reversing most of the changes contained in the previous government's Bill 148.

Proposed changes to Ontario Employment Standards Act

With respect to Ontario's Employment Standards Act 2000, Bill 47 proposes to:

  • freeze the minimum wage at C$14 per hour until 2020, at which time it will rise at the rate of inflation;
  • repeal the scheduling provisions of Bill 148, including:
    • the right to request changes to schedule or work location after an employee has been employed for at least three months;
    • a minimum of three hours' pay for being on call if the employee is available to work but is not called in to work, or works less than three hours;
    • the right to refuse requests or demands to work or to be on call on a day that an employee is not scheduled to work or be on call with less than 96 hours' notice;
    • three hours' pay in the event of cancellation of a scheduled shift or an on-call shift within 48 hours before the shift was to begin; and
    • the record-keeping requirements that relate to the above-noted scheduling provisions;
  • repeal personal emergency leave entitlements (10 days, including two paid days) which pre-existed Bill 148 in their entirety. In lieu of personal emergency leave, Bill 47 proposes three new types of unpaid leave (which employees would be entitled to after two consecutive weeks' employment) as follows:
    • ?three annual days for personal illness;
    • three annual days for family responsibility; and
    • ?three days for bereavement;
  • repeal the prohibition of an employer seeking a doctor's note from an employee accessing the new personal illness leave;
  • remove the reverse onus provision which required employers to prove that a worker the employer identified as an independent contractor was indeed an independent contractor and not an employee;
  • remove the equal pay for equal work on the basis of employment status (part-time, casual, temporary and temporary assignment employee) requirements;
  • continue to permit sheltered workshops and corresponding sub-minimum wage pay for employees with disabilities until such time as the government chooses to prohibit this practice. Under current legislation, this would be barred effective 1 January 2019;
  • lower administrative penalties for contraventions of the Employment Standards Act;
  • maintain the Bill 148 provisions providing leave for victims of sexual assault or domestic violence, including five days of paid leave paid by employers;
  • maintain the Bill 148 three-hour rule (if an employee who generally works for more than three hours is called in and works less than three hours, the employee is to receive three hours of pay); and
  • maintain the public holiday provisions currently in place in Ontario on a permanent basis.

Proposed changes to Ontario Labour Relations Act

With respect to Ontario's Labour Relations Act 1995, Bill 47 proposes to:

  • repeal card-based certification for workers in homecare, building services and temporary help agencies and revert to a vote-based system;
  • repeal the ability of a union to seek a list of employees and contact information for employees when it can show 20% employee support for union certification;
  • revert to the remedial certification rules which pre-existed Bill 148;
  • repeal the government's ability to enact union successor rights in government-funded industries; repeal the power of the Ontario Labour Relations Board (OLRB) to review and consolidate newly certified bargaining units with existing bargaining units;
  • create a new power for the OLRB to review the structure of bargaining units where the existing bargaining units are no longer appropriate for collective bargaining;
  • revert to the pre-Bill 148 job protection for workers on strike by reinstating the six-month limitation on an employee's right to reinstatement;
  • repeal Bill 148's first collective agreement mediation and mediation-arbitration provisions and provisions for educational support for employers and unions and re-instate the pre-Bill 148 provisions for OLRB involvement in first collective agreement arbitration in limited circumstances; and
  • decrease the maximum fine limits for breaches of the Labour Relations Act.

Other changes

Bill 47 also proposes to make certain corresponding changes to the Crown Employees Collective Bargaining Act 1993, the Occupational Health and Safety Act, the Public Sector Dispute Resolution Act 1997, the Public Sector Labour Relations Transition Act 1997 and the School Board Collective Bargaining Act 2014 to properly reference the proposed changes to the Labour Relations Act.

Finally, Bill 47 proposes to change certain apprenticeship ratios in Ontario (mainly in the construction sector) to one-to-one and to wind down the Ontario College of Trades which currently oversees the regulation of trade ratios, certifications and certain enforcement requirements in Ontario.

For further information on this topic please contact Marc Rodrigue at Fasken Martineau by telephone (+1 416 366 8381) or by email (mrodrigue@fasken.com). The Fasken Martineau website can be accessed at www.fasken.com.

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