Ontario’s Bill 148, Fair Workplaces, Better Jobs Act, 2017 received Royal Assent yesterday, becoming law.

The Bill is now law, amending Ontario’s Employment Standards Act and Labour Relations Act in substantial ways. Gowling WLG’s comprehensive guide to the Bill 148 changes can be found here.

The chart below details the coming-into-force provisions of the Fair Workplaces, Better Jobs Act, 2017. This information is based on the most recent version of the Act, which received Royal Assent on Nov. 27, 2017.

Provision

Cross-referenced Provisions

Outcome

General Commencement

2(1) Subject to subsections (2) and (3), this Act comes into force on the day it receives Royal Assent.

Not applicable.

Does not have a practical effect given the various coming into force dates for each Schedule.

General Commencement

2(2) The Schedules to this Act come into force as provided in each Schedule.

Please refer to the commencement provisions of each Schedule.

Please refer to Schedules.

General Commencement

2(3) If a Schedule to this Act provides that any provisions are to come into force on a day to be named by proclamation of the Lieutenant Governor, a proclamation may apply to one or more of those provisions, and proclamations may be issued at different times with respect to any of those provisions.

The term “proclamation” was not included in any provision of the current version of Bill 148.

No terms provide for coming into force upon proclamation.

Schedule 1, Employment Standards Act, 2000

72(1) Subject to subsections (2) to (5), this Schedule comes into force on January 1, 2018.

Not applicable.

Unless provided below, all Schedule 1 (ESA) provisions are effective January 1, 2018.

Schedule 1, Employment Standards Act, 2000

72 (2) Section 5 and this section come into force on the day the Fair Workplaces, Better Jobs Act, 2017 receives Royal Assent.

5 The Act is amended by adding the following section:

No treating as if not employee 5.1 (1) An employer shall not treat, for the purposes of this Act, a person who is an employee of the employer as if the person were not an employee under this Act.

Onus of proof (2) Subject to subsection 122 (4), if, during the course of an employment standards officer's investigation or inspection or in any proceeding under this Act, other than a prosecution, an employer or alleged employer claims that a person is not an employee, the burden of proof that the person is not an employee lies upon the employer or alleged employer.

"No treating as if not employee" provision and burden of proof on employer to disprove employee status effective November 27, 2017.

Schedule 1, Employment Standards Act, 2000

72(3) Subsection 8(7), sections 32, 33 and 36 come into force on the later of December 3, 2017 and the day the Fair Workplaces, Better Jobs Act, 2017 receives Royal Assent.

8 (7) Subsection 15 (7) of the Act is amended by striking out "critically ill child care leave" and substituting "critical illness leave". 32 (1) Subsection 48 (2) of the Act [when parental leave may begin] is amended by striking out "52 weeks" and substituting "78 weeks".

(2) Section 48 of the Act is amended by adding the following subsection:

Transition (2.1) Despite subsection (2), an employee may begin parental leave no later than 52 weeks after the day the child is born or comes into the employee's custody, care and control for the first time if that day was before the day subsection 23.2 (2) of Schedule 1 to the Fair Workplaces, Better Jobs Act, 2017 came into force.

33(1) Subsection 49 (1) of the Act [end of parental leave] is amended by striking out "35 weeks" and substituting "61 weeks" and by striking out "37 weeks" and substituting "63 weeks".

(2) Section 49 of the Act is amended by adding the following subsection:

Transition (1.1) Despite subsection (1), if the child in respect of whom the employee takes parental leave was born or came into the employee's custody, care and control for the first time before the day subsection 23.3 (2) of Schedule 1 to the Fair Workplaces, Better Jobs Act, 2017 came into force, the employee's parental leave ends, (a) 35 weeks after it began, if the employee also took pregnancy leave; and (b) 37 weeks after it began, otherwise.

26 The heading immediately before section 49.4 and section 49.4 are repealed and the following substituted: [Includes entire section on Critical Illness leave]

Critical illness leave and increased parental leave provisions will come into force on December 3, 2017.

Schedule 1, Employment Standards Act, 2000 72(4) Subsection 1 (2) and sections 25, 26, 27, 28, 29, 41 and 45 come into force on April 1, 2018.

1(2) Subsection 1 (1) of the Act is amended by adding the following definition: "difference in employment status", in respect of one or more employees, means, (a) a difference in the number of hours regularly worked by the employees; or (b) a difference in the term of their employment, including a difference in permanent, temporary, seasonal or casual status;

25 Part XII of the Act [Equal Pay for Equal Work] is amended by adding the following section: 41.2 In this Part, "substantially the same" means substantially the same but not necessarily identical.

26(1) Clause 42 (2) (d) of the Act [under Equal Pay for Equal Work, currently provides "any other factor other than sex"] is amended by adding "or employment status" at the end.

21(2) The French version of subsection 42 (4) of the Act is amended by striking out "doit faire" and substituting "ne doit faire".

21(3) Section 42 of the Act [Equal Pay for Equal Work] is amended by adding the following subsection:

Written response (6) An employee who believes that their rate of pay does not comply with subsection (1) may request a review of their rate of pay from the employee's employer, and the employer shall, (a) adjust the employee's pay accordingly; or (b) if the employer disagrees with the employee's belief, provide a written response to the employee setting out the reasons for the disagreement.

27 Part XII of the Act [Equal Pay for Equal Work] is amended by adding the following section:

Difference in employment status 42.1 (1) No employer shall pay an employee at a rate of pay less than the rate paid to another employee of the employer because of a difference in employment status when, (a) they perform substantially the same kind of work in the same establishment; (b) their performance requires substantially the same skill, effort and responsibility; and (c) their work is performed under similar working conditions.

Exception (2) Subsection (1) does not apply when the difference in the rate of pay is made on the basis of, (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; or (d) any other factor other than sex or employment status.

Reduction prohibited (3) No employer shall reduce the rate of pay of an employee in order to comply with subsection (1).

Organizations (4) No trade union or other organization shall cause or attempt to cause an employer to contravene subsection (1).

Deemed wages (5) If an employment standards officer finds that an employer has contravened subsection (1), the officer may determine the amount owing to an employee as a result of the contravention and that amount shall be deemed to be unpaid wages for that employee.

Written response (6) An employee who believes that their rate of pay does not comply with subsection (1) may request a review of their rate of pay from the employee's employer, and the employer shall, (a) adjust the employee's pay accordingly; or (b) if the employer disagrees with the employee's belief, provide a written response to the employee setting out the reasons for the disagreement.

Transition, collective agreement (7) If a collective agreement that is in effect on April 1, 2018 contains a provision that permits differences in pay based on employment status and there is a conflict between the provision of the collective agreement and subsection (1), the provision of the collective agreement prevails.

Same, limit (8) Subsection (7) ceases to apply on the earlier of the date the collective agreement expires and January 1, 2020.

28 Part XII of the Act [Equal Pay for Equal Work] is amended by adding the following section:

Difference in assignment employee status 42.2 (1) No temporary help agency shall pay an assignment employee who is assigned to perform work for a client at a rate of pay less than the rate paid to an employee of the client when, (a) they perform substantially the same kind of work in the same establishment; (b) their performance requires substantially the same skill, effort and responsibility; and (c) their work is performed under similar working conditions.

Exception (2) Subsection (1) does not apply when the difference in the rate of pay is made on the basis of any factor other than sex, employment status or assignment employee status.

Reduction prohibited (3) No client of a temporary help agency shall reduce the rate of pay of an employee in order to assist a temporary help agency in complying with subsection (1).

Organizations (4) No trade union or other organization shall cause or attempt to cause a temporary help agency to contravene subsection (1).

Deemed wages (5) If an employment standards officer finds that a temporary help agency has contravened subsection (1), the officer may determine the amount owing to an assignment employee as a result of the contravention and that amount shall be deemed to be unpaid wages for that assignment employee.

Written response (6) An assignment employee who believes that their rate of pay does not comply with subsection (1) may request a review of their rate of pay from the temporary help agency, and the temporary help agency shall, (a) adjust the assignment employee's pay accordingly; or (b) if the temporary help agency disagrees with the assignment employee's belief, provide a written response to the assignment employee setting out the reasons for the disagreement.

Transition, collective agreement (7) If a collective agreement that is in effect on April 1, 2018 contains a provision that permits differences in pay between employees of a client and an assignment employee and there is a conflict between the provision of the collective agreement and subsection (1), the provision of the collective agreement prevails.

Same, limit (8) Subsection (7) ceases to apply on the earlier of the date the collective agreement expires and January 1, 2020.

29 Part XII of the Act is amended by adding the following section:

Review 42.3 (1) Before April 1, 2021, the Minister shall cause a review of sections 42.1 and 42.2 to be commenced.

Same (2) The Minister may specify a date by which a review under subsection (1) must be completed.

41 Clause 74 (1) (a) of the Act is amended by adding the following subclauses:

(v.1) makes inquiries about the rate paid to another employee for the purpose of determining or assisting another person in determining whether an employer is complying with Part XII (Equal Pay for Equal Work), (v.2) discloses the employee's rate of pay to another employee for the purpose of determining or assisting another person in determining whether an employer is complying with Part XII (Equal Pay for Equal Work),

45 Clause 74.12 (1) (a) of the Act is amended by adding the following subclauses:

(v.1) makes inquiries about the rate paid to an employee of the client for the purpose of determining or assisting another person in determining whether a temporary help agency is complying with Part XII (Equal Pay for Equal Work),

(v.2) discloses the assignment employee's rate of pay to an employee of the client for the purpose of determining or assisting another person in determining whether a temporary help agency is complying with Part XII (Equal Pay for Equal Work),

(v.3) discloses the rate paid to an employee of the client to the assignment employee's temporary help agency for the purposes of determining or assisting another person in determining whether a temporary help agency is complying with Part XII (Equal Pay for Equal Work).

Definition of "difference in employment status" and changes to Equal Pay for Equal Work provisions come into force on April 1, 2018.

Schedule 1, Employment Standards Act, 2000

72(5) Subsections 2(3), 8 (2) and (6), sections 11 and 12 and subsection 69(3) come into force on January 1, 2019.

2(3) Clause (c) of the definition of "employee" in subsection 1 (1) of the Act is repealed and the following substituted:

(c) a person who receives training from a person who is an employer, if the skill in which the person is being trained is a skill used by the employer's employees, or

8(2) Subsection 15 (1) of the Act [Employee Records] is amended by adding the following paragraphs:

3.3 The dates and times that the employee was scheduled to work or to be on call for work, and any changes made to the on call schedule.

3.4 Any cancellations of a scheduled day of work or scheduled on call period of the employee, as described in subsection 21.6 (2), and the date and time of the cancellation.

8(6) Paragraph 3 of subsection 15 (5) of the Act [Retention of Records], as amended by subsection (5), is amended by striking out "paragraph 3.1, 3.2 or 4"and substituting "paragraph 3.1, 3.2, 3.3, 3.4 or 4".

11 The Act is amended by adding the following Part:

Part VII.1: Requests for Changes to Schedule or Work Location

Request for changes to schedule or work location 21.2 (1) An employee who has been employed by his or her employer for at least three months may submit a request, in writing, to the employer requesting changes to the employee's schedule or work location.

Receipt of request (2) An employer who receives a request under subsection (1) shall, (a) discuss the request with the employee; and (b) notify the employee of the employer's decision within a reasonable time after receiving it.

Grant of request (3) If the employer grants the request or any part of it, the notification in clause (2) (b) must specify the date that the changes will take effect and their duration.

Denial of request (4) If the employer denies the request or any part of it, the notification in clause (2) (b) must include the reasons for the denial. 12 The Act is amended by adding the following Part:

Part VII.2: Scheduling [includes the three hour rule, exception, minimum pay for being on call, right to refuse, cancellation and limits]

69(3) Paragraph 2.0.2 of subsection 141 (1) of the Act is repealed. [Removes the ability of the Lieutenant Governor in Council to make regulations on 2.0.2: "Requiring an employer to pay at least the amount prescribed where an employee who regularly works more than three hours a day is required to present himself or herself for work on a day on which he or she works fewer than three hours."]

Modification to definition of employee, requirement to keep records of on-call schedules or cancelled days of work/on call periods, changes to work schedule/location and scheduling provisions come into force January 1, 2019.

Schedule 2, Labour Relations Act, 1995

20 This Schedule comes into force on the later of January 1, 2018 and the day the Fair Workplaces, Better Jobs Act,

2017 receives Royal Assent.

Not applicable.

Amendments to Labour Relations Act, 1995 will be effective on January 1, 2018.

Schedule 3, Occupational Health and Safety Act

2 This Schedule comes into force on the day the Fair Workplaces, Better Jobs Act, 2017 receives Royal Assent.

Not applicable.

Amendments to the Occupational Health and Safety Act effective November 27, 2017.