October 24, 2018

Proposed Making Ontario Open for Business Act, 2018 (Bill 47) Will Repeal Amendments Made by the Fair Workplaces, Better Jobs Act, 2017 (Bill 148)

The Ontario government has announced that it will introduce legislation entitled the Making Ontario Open for Business Act, 2018, which will repeal amendments made by the Fair Workplaces, Better Jobs Act, 2018 (Bill 148), introduced by the previous government. While many of the amendments under Bill 148 are currently in effect, certain changes (e.g., scheduling provisions) are scheduled to come into effect on January 1, 2019. We expect that the legislation will pass prior to the end of 2018.

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

Employment Standards Act, 2000 (ESA)

Minimum Wage

  • Keeping the minimum wage at $14 on January 1, 2019.
  • Not rolling back any previous minimum wage increase.
  • Establishing a 33-month pause in minimum wage increases with annual increases to the minimum wage, tied to inflation, restarting in 2020.

Scheduling

  • Repealing the following scheduling provisions that would otherwise have come into force on January 1, 2019:
    • Right for the employee (without reprisal) to request changes to schedule or work location after an employee has been employed for at least three (3) months.
    • Minimum of three (3) 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 (3) hours.
    • 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 to be on-call with less than 96 hours’ notice.
    • Three (3) hours’ minimum pay in the event of cancellation of a scheduled shift or an on-call shift within 48 hours before the shift was to begin.
    • The record-keeping requirements that relate to the above-noted scheduling provisions.

Three (3) Hour Rule

  • Modifying and moving the existing three-hour rule to a new section of the ESA. Where an employee who regularly works more than three (3) hours a day is required to report to work, but works less than three (3) hours, the employee would be paid for three (3) hours (subject to certain exceptions).

Personal Emergency Leave

  • Replacing the ten (10) days of Personal Emergency Leave (PEL) with up to three (3) days for personal illness, two (2) for bereavement, and three (3) days for family responsibilities. All of the above days will be unpaid.
  • The three (3) leaves above would only be available to employees who have been employed for at least two (2) consecutive weeks. Currently, PEL is available to all employees regardless of their length of employment (and two (2) days are paid once the employee has been employed for a week).
  • Repealing the provision that prohibits employers from requiring an employee to provide a medical note from a qualified health practitioner. Employers would have the right to require evidence of entitlement to the leave that is reasonable in the circumstances (e.g., a note from a qualified health practitioner).

Vacation

  • Preserving the right of every worker in Ontario to receive three (3) weeks of paid vacation after five (5) years of service.

Domestic Violence Leave

  • Protecting current paid leave provisions for cases of domestic and sexual violence affecting an employee or an employee’s child.

Public Holiday Pay

  • Repealing the averaging public holiday pay formula prescribed by Bill 148 and returning to the previous prorating public holiday pay formula (Note: The old formula has actually already been reinstated by Regulation starting with the July 1, 2018 Canada Day holiday).

Misclassification

  • Repealing the requirement for the employer to prove that an individual is not an employee (“reverse onus”) where there is a dispute over whether the individual is an employee.

Equal Pay for Equal Work

  • Repealing equal pay for equal work on the basis of employment status (part-time, casual, and temporary) and assignment employee status (temporary help agency status).
  • Maintaining the requirement for equal pay on the basis of sex.

Sheltered Workshops

  • Delaying the January 1, 2019 repeal of the exclusion from the ESA of individuals who perform work in a simulated job or working environment if the primary purpose is the individual’s rehabilitation. The repeal would instead come into force on proclamation.

Penalties for Contravention

  • Returning to the previous administrative penalties for contraventions of the ESA by decreasing the maximum penalties from $350/$700/$1500 to $250/$500/$1000, respectively.

Labour Relations Act (LRA)

Card-based Certification

  • Repealing the rules for card-based certification on workers in home care, building services, and temporary help agencies. These workers will have the right to vote through a secret ballot.

Employee Lists

  • Repealing the rules that required an employer to provide employees’ personal information to a union when a minimum of 20% of the workers showed interest in joining a union.

Remedial Certification

  • Reinstating the pre-Bill 148 test and preconditions for the OLRB to certify a union as a remedy for employer misconduct during a union organizing drive.
  • Requiring the OLRB to determine whether a vote or new vote would be a sufficient remedy and only ordering automatic certification where the only sufficient remedy for employer misconduct would be to automatically certify the union without a vote.

Successor Rights

  • Repealing the regulation-making authority to expand successor rights to contract tendering for publicly-funded services such as homecare.

Structure of Bargaining Units

  • Repealing the power of the OLRB to review and consolidate newly certified bargaining units with existing bargaining units.
  • Empowering the OLRB to review the structure of bargaining units where the existing bargaining units are no longer appropriate for collective bargaining.

Return-to-work Rights

  • Reinstating the six (3) month limitation on an employee’s right to reinstatement following the start of a strike or lock-out.

First Collective Agreement Mediation and Mediation-Arbitration

  • Repealing the Bill 148 first collective agreement mediation and mediation-arbitration provisions and provisions for educational support.
  • Reinstating pre-Bill 148 conditions for access to first agreement arbitration (where it appears to the OLRB that collective bargaining has been unsuccessful for specified reasons).

Fines

  • Returning to the previous maximum fines for offences under the LRA by decreasing the fines from $5,000 to $2,000 for individuals and from $100,000 to $25,000 for organizations.

Streamlining and Improving Processes

  • Expanding and recognizing alternative means of communications under the Act (e.g., facsimile, e-mail) for various types of documents, and deeming the time of the release or receipt of the document.
  • Allowing the OLRB to make rules to expedite certain proceedings without the requirement of an order of the Lieutenant Governor in Council to establish a coming-into-force date for the rule.
  • Facilitating and requiring the publication of documents (collective agreements and arbitration awards) filed with the Minister, including publication on Government website.

 

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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