On May 23, 2017, The Changing Workplaces Review – Final Report (Report) was released, recommending major changes to the province’s employment standards and labour relations legislation. For further information on the Report, see our May 2017 Blakes Bulletin: Ontario Considers Major Employment and Labour Law Reform: Key Recommendations and How They Will Impact Employers. The Ontario government promised to move quickly in responding to the Report’s recommendations, and it has done so by tabling new legislation.
On June 1, 2017, the government introduced the Fair Workplaces, Better Jobs Act, 2017 (Bill 148), which will, if enacted, amend Ontario’s Employment Standards Act, 2000 (ESA) and Labour Relations Act, 1995 (LRA ) in accordance with many of the Report’s recommendations. These amendments will have significant implications for employers in Ontario.
The Bill’s key proposals are as follows:
- Minimum Wage: Increase the general minimum wage to C$14/hour effective January 1, 2018, followed by a further increase to C$15/hour effective January 1, 2019.
- Scheduling: Create new rights for employees related to scheduling, including the following:
- An employee will have the right to refuse an employer’s request or demand to work on a day that the employee was not scheduled to work if the request or demand is made less than 96 hours before the time the employee would commence work.
- If an employer cancels an employee’s scheduled day of work with less than 48 hours’ notice, the employer will be required to pay the employee wages equal to the employee’s regular rate for three hours of work.
- An employee who is “on call” and not called to work (or who is called into work and works for less than three hours) must be paid his or her regular rate for three hours of work.
- An employee will be permitted to request a change to his or her schedule or work location after three months’ employment. If the employer denies the employee’s request, the employer must provide reasons for the denial.
- Vacation: Increase minimum vacation entitlements to three weeks per year after five years of employment.
- Holiday Pay: Simplify the calculation of public holiday pay based on the number of days actually worked in the pay period immediately preceding the public holiday.
- Leaves of Absence: Strengthen certain existing leaves of absence:
- Personal emergency leave will be available to all employees, rather than only those in workplaces with 50 or more employees. The first two days taken will be paid, after which the employee will be entitled to a further eight unpaid days. While an employer may require an employee who takes leave to provide evidence reasonable in the circumstances that the employee is entitled to the leave, the employer cannot require the employee to provide a certificate from a qualified health practitioner.
- An employee with six consecutive months’ service whose child dies from any cause (not only crime-related) will be entitled to child death leave for a period of up to 104 weeks. This leave is distinct from crime-related child disappearance leave, which has also been increased to 104 weeks.
- Entitlement to family medical leave is increased to 27 weeks in a 52-week period.
- Misclassification: Prohibit employers from treating a person who is an employee of the employer as if that person were not an employee (i.e., addressing the misclassification of employees as independent contractors). In the case of a dispute, the burden of proof that the person is not an employee lies with the employer.
- Penalties for Employers: Provide that the director of employment standards may make public (including via the Internet) the name of the employer and its contravention, if that employer is found in violation of employment standards legislation.
- Equal Pay for Equal Work: With certain exceptions, prohibit an employer from paying an employee at a rate of pay less than the rate paid to another employee because of a difference in employment status. This protection would also extend to temporary help agency employees.
- Joint Liability of Related Employers: Eliminate the requirement of showing “intent or effect” to undermine the ESA when determining whether related businesses can be treated as one employer and held jointly and severally liable under the ESA.
With various exceptions, ESA amendments would come into force on January 1, 2018, with the earliest amendments coming into force the day the Fair Workplaces, Better Jobs Act, 2017 receives royal assent.
- Certification: Implement the following rules regarding certification of unions:
- Allow card-based certification in the building services, home care and community services, and temporary help agency industries.
- Allow unions with the support of at least 20 per cent of an organization’s employees to access a complete list of that organization’s employees, along with those employees’ phone numbers and personal emails.
- Allow the Ontario Labour Relations Board to conduct votes outside the workplace, as well as electronically and by telephone.
- Consolidation of Bargaining Units: Empower the Ontario Labour Relations Board to, among other things, consolidate a certified bargaining unit with an existing bargaining unit of employees of the employer represented by the same union.
- Successor Rights: Extend successor rights to the building services industry (i.e., building cleaning services, food services and security services).
- Prosecutions and Penalties: Increase maximum fines for contravention to C$5,000 for individuals and C$100,000 for organizations.
- Return to Work: Remove the six-month limitation before an employee can return to work after commencement of a lawful strike.
LRA amendments would come into force six months after the day the Fair Workplaces, Better Jobs Act, 2017 receives royal assent.
NEXT STEPS FOR EMPLOYERS
Although the Bill is not yet law (and may undergo changes before it ultimately comes into force), employers should begin preparing for the significant changes that are likely to come to workplaces across the province. At minimum, employers are recommended to begin identifying those handbooks, policies, and practices (including scheduling and payroll practices) that are likely to require revisions or updates in connection with the proposed amendments to the legislation. Additionally, employers should consider whether any of their offer letter or employment agreement templates will need to be updated to reflect the new minimum standards. Employers will also want to consider any training that may be necessary to ensure that managers and supervisors are aware of, and in compliance with, the amendments once they come into force.