November 26, 2017

Proposed Changes to Ontario’s Workplace Legislation

 

Bill 148, The Fair Workplaces, Better Jobs Act, 2017, which includes broad ranging amendments to Ontario’s Employment Standards Act, 2000 and Labour Relations Act, has passed second reading after debate in the Ontario Legislature. The final legislation is expected to be passed by the end of 2017.

The proposed changes are summarized below. We will keep clients informed of any further changes once final legislation is tabled in the Legislature.

Proposed Changes to the Employment Standards Act (“ESA”)

  1. The Government is proposing to increase the general minimum wage to increasing $14 per hour on January 1, 2018, and then to $15 on January 1, 2019, followed by annual increases at the rate of inflation. The special minimum wage rates for liquor servers, students under 18, hunting and fishing guides, and homeworkers would be maintained, and would increase by the same percentage as the general minimum wage.
  2. Part-time, temporary, casual and seasonal employees would receive equal pay for equal work. Proposed to come into force on April 1, 2018.
    • Temporary Help Agency (“THA”) Employees
      • THA employees would need to be paid equally to permanent employees of the THA client when performing the same job. Proposed to come into force on April 1, 2018.
      • THA employees would be entitled to at least 1 weeks’ notice when an assignment scheduled to last longer than 3 months would be terminated early. If less than 1 weeks’ notice is given, the THA employee must be paid for the difference, unless the THA employee is offered a least 1 weeks’ worth of reasonable work during the notice period. Proposed to come into force on January 1, 2018.
      • THA will be required to record and maintain a record of the number of hours worked by each assignment employee for each client each day and each week.
  1. Paid vacation time would increase to 3 weeks after 5 years of service. Proposed to come into force on January 1, 2018.
  2. Establishing rules for scheduling:
    • Employees would have the right to request schedule or location changes after having been employed for 3 months, without fear of reprisal.
    • Employees who regularly work more than 3 hours per day, who are scheduled to work, and work less than 3 hours, despite being available to work, must be paid 3 hours at their regular rate of pay (and not at the current minimum wage).
    • Employees can refuse to accept shifts without repercussion if their employer asks them to work with less than 4 days’ notice, except in the following circumstances:
      • to deal with an emergency;
      • to remedy or reduce a threat to public safety; or
      • other reasons as may be prescribed.

If a collective agreement in effect on January 1, 2019 contains a provision that addresses a schedule change refusal and there is a conflict between the provision of the collective agreement and this section, the provision of the collective agreement prevails until the contract expires or January 1, 2020, whichever is earlier.

  • If a shift is cancelled within 48 hours of its start time, employees must be paid 3 hours at their regular rate of pay, unless:
    • the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer’s control that result in the stopping of work;
    • the nature of the employee’s work is weather-dependent and the employer is unable to provide work for the employee for weather-related reasons; or
    • the employer is unable to provide work for the employee for such other reasons as may be prescribed.
  • When employees are “on-call” and not called in to work, they must be paid 3 hours at their regular rate of pay. This would be required for each 24 hour period that employees are on-call.
  • If a collective agreement in effect on January 1, 2019 contains a provision that addresses on-call obligations and there is a conflict between the provision of the collective agreement and this section, the provision of the collective agreement prevails until the contract expires or January 1, 2020, whichever is earlier.
  1. Overtime Pay – employees who hold more than one position with an employer and who are working overtime must be paid at the rate for the position they are working during the overtime period. Proposed to come into force on January 1, 2018.
  2. Personal Emergency Leave (“PEL”) – the application of the leave would be broadened to all workplaces. The 50 or more employee threshold would be eliminated. All employees would have a right to take up to 10 days of personal emergency leave days per year and employees with one week of service or longer are entitled to have 2 days paid by the employer. The reasons for taking PEL would also be expanded so that employees experiencing domestic or sexual violence or the threat of sexual or domestic violence could take the leave. Proposed to come into force on January 1, 2018. A partial day off under this section may be deemed to be full day.

Paid PEL is to be calculated based on the wage the employee would have earned had they not taken the leave. If the employee receives performance-related wages (ie. commissions or a piece work rate), the employee is entitled to the greater of their hourly rate or the minimum wage for the number of hours the employee would have worked had they not taken the leave. The employee is not entitled to overtime pay or a shift premium for paid PEL.

  1. Public Holiday Pay – the formula for calculating public holiday pay would be based on the total amount of regular wages earned in the pay period immediately preceding the public holiday, divided by the number of days the employee worked in that period. Proposed to come into force on January 1, 2018.

If a day is substituted for a public holiday an employer will be required to provide employees with a written statement before the holiday indicating:

  • the public holiday the employee will work;
  • the date that is substituted for a public holiday; and
  • the date the statement is provided to the employee.
  1. Leave for the Death of a Child and for Crime-Related Disappearance – a new separate leave for child death from any cause for a period of up to 104 weeks would be created. A new separate leave for crime-related child disappearance for the same period of time would be created. Proposed to come into force on January 1, 2018.
  2. Domestic or Sexual Violence Leave – a new separate leave is available for employees with at least 13 weeks service if the employee or a child of the employee experiences domestic or sexual violence, or the threat of domestic or sexual violence. The leave may be taken for any of the following purposes:
  • for medical attention or professional counselling in respect of a physical or psychological injury or disability caused by the domestic or sexual violence.
  • To obtain services from a victim services organization for the employee’s child.
  • To relocate temporarily or permanently.
  • To seek legal or law enforcement assistance, and to prepare and attend at a legal proceeding related to the domestic or sexual violence.

The leave does not apply if the domestic or sexual violence is committed by the employee.

An employee is entitled to take, in each calendar year,

(a)  up to 10 days of leave under this section (deemed to be taken in entire days) ; and

(b)  up to 15 weeks of leave under this section (part weeks are deemed to be entire weeks).

An employer may require evidence reasonable in the circumstances of the employee’s entitlement to the leave.

  1. Family Medical Leave would increase to 27 weeks in a 52-week period. Proposed to come into force on January 1, 2018.
  2. Employers would be prohibited from requiring physician notes for absences (“sick note”) from an employee taking Personal Emergency Leave. Proposed to come into force on January 1, 2018.
  3. Paying Employees – Employment Standards Officer would be given authority to order money to be paid directly to an employee when an employer or Temporary Help Agency client owes money to that employee. Proposed to come into force on January 1, 2018.
  4. Employee contact – employees would no longer be required to contact their employer first before filing a claim under the ESA. The Director of Employment Standards would no longer be able to refuse to assign an ESO to investigate an ESA claim due to insufficient information from the claimant. Proposed to come into force on January 1, 2018.
  5. Administrative monetary penalties for non-compliant employers would increase from $250, $500, and $1000 to $350, $700, and $1500, respectively. The Director of Employment Standards would be given authority to publish (including online) the names of individuals who have been issued a penalty, a description of the contravention, the date of the contravention and the amount of the penalty. Proposed to come into force on January 1, 2018.
  6. Employers would be prohibited from misclassifying employees as “independent contractors.”
    • Employers that do so would be subject to penalties, including prosecution, public disclosure of a conviction and monetary penalties. The onus would be on the employer to prove that the individual is not an employee. Proposed to come into force immediately when the legislation becomes law.
    • No change to the definition of “employee” to include “dependant contractor”.
  7. Joint Liability – the provision requiring proof of “intent or effect” to defeat the purpose of the ESA when determining whether related businesses can be treated as one employer and held jointly and severally liable for monies owed under the ESA would be removed. Proposed to come into force on January 1, 2018.
  8. Employment Standards Officers would be given authority to award interest on employees’ unpaid wages and on fees that were unlawfully charged to employees. The Director of Employment Standards would also be allowed, with the Minister’s approval, to determine rates of interest for amounts owing under different provisions of the ESA. Proposed to come into force on January 1, 2018.
  9. The government or an authorized collector of wages would be able to issue warrants, place liens on real and personal property and hold a security while a payment plan for outstanding wages is underway. Government and the authorized collector would be able to collect and share personal information as well. Proposed to come into force on January 1, 2018.
  10. Electronic agreements between employers and employees, such as an agreement to work excess hours, can serve as an agreement in writing. Proposed to come into force on January 1, 2018.
  11. Exclusions:
    • Almost all existing ESA requirements and entitlements would apply to Crown employees. Proposed to come into force on January 1, 2018.
    • All ESA requirements and entitlements would apply to:
      • people receiving training for work through their employer; however, individuals working as part of an experiential learning program run by a university, community college, private career college or high school would be excluded from the requirements and entitlements under the ESA. Proposed to come into force on January 1, 2018;
      • employees working in a simulated job or working environment for their rehabilitation (commonly known as a “sheltered workshop”). Proposed to come into force on January 1, 2019.
    • Students who are employed and regularly work more than 3 hours are paid for at least 3 hours even if they work less than that amount. Proposed to come into force on January 1, 2019.
    • Beginning in fall 2017, the Ministry of Labour would conduct a review of ESA exemptions and special industry rules, including consultation with affected stakeholders. This review would include exemptions in place for managers and supervisors.
  12. Enforcement – Ontario plans to hire up to 175 more employment standards officers and launch a program to educate both employees and small and medium-sized businesses about their rights and obligations under the ESA.
    • Once the new employment standards officers are hired by 2020-2021, it would be expected that the Employment Standards program would resolve all claims filed within 90 days and inspect 1 in 10 Ontario workplaces per year. Additionally, the program would provide compliance assistance to new employers specifically focusing on medium and small business.
    • Increased enforcement would aim to motivate compliance and deter non-compliance. Enforcement would focus on employers who compete unfairly by breaking the law, and would level the playing field for the majority of employers that follow the rules.

Proposed Changes to the Labour Relations Act (“LRA”)

  1. Union Certification
    • Card-based union certification would be established for the temporary help agency industry, the building services sector and home care and community services industry.
    • Certain conditions for remedial union certification would be eliminated, allowing unions to more easily get certified when an employer engages in misconduct that contravenes the LRA.
    • If an employer disagrees with the union’s estimate of the number of individuals in the proposed bargaining unit included in the application the employer must submit a statutory declaration setting out the number of individuals in the bargaining unit.
    • Access to first contract arbitration would be made easier and an intensive mediation component would be added to the process. The OLRB would be required to address first contract mediation-arbitration applications before dealing with displacement and decertification applications.
    • Unions would be allowed to access employee lists and certain contact information, provided the union can demonstrate that it has already achieved the support of 20 per cent of employees involved. All reasonable steps are to be taken by an employer and the union to protect the security and confidentiality of the list. The list must be destroyed within one year of the OLRB directing the list to be provided.
    • The OLRB would be expressly empowered to conduct votes outside the workplace, including electronically and by telephone.
    • The OLRB would be empowered to authorize Labour Relations Officers to give directions relating to the voting process and voting arrangements in order to help assure the neutrality of the voting process.
  2. Successor Rights
    • Successor rights would be extended to the retendering of building services contracts. The proposed legislation would also enable the government to apply this expanded notion of successor rights, by regulation, to the retendering of other publicly funded contracted services.
  3. Educational Support
  • Where notice of a desire to bargain has been given, either party may request educational support in the practice of labour relations and collective bargaining and it will be provided by the Ministry of Labour.
  1. Return-to-Work Rights and Procedures
    • Employers would be required to reinstate an employee at the conclusion of a legal strike or lock-out (subject to certain conditions), and to provide access to grievance arbitration for the enforcement of that obligation. The proposed changes would remove the current six-month limitation.
  2. Just Cause Protection
    • Employees would be protected from discipline or discharge without just cause by their employer in the period between certification and conclusion of a first contract, and during the period between the date the employees are in a legal strike or lock-out position and the new collective agreement or the date the union no longer represents the employees.
  3. Fines
    • Maximum fines under the LRA would be increased to $5,000 for individuals and $100,000 for organizations (from the current $2,000 for individuals and $25,000 for organizations).
  4. Exemptions
    • The Ministry of Labour would work with affected Ministries to consult with stakeholders to review the Special Advisors’ recommendation to remove the exclusions under the LRA taking into account ongoing litigation.

Coming Into Force: If the proposed legislation is passed, all labour relations proposals would come into force six (6) months after the Act receives Royal Assent.

LEGAL DISCLAIMER: This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation.
Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.

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