November 23, 2018
by Israel Foulon LLP

The Ontario government has passed the Making Ontario Open for Business Act, 2018 (Bill 47). Bill 47 will come into effect on January 1, 2019. The Act will repeal amendments made by the Fair Workplaces, Better Jobs Act, 2018 (Bill 148) that came into effect last year, as well as amendments under Bill 148 (e.g., scheduling) that were set to come into effect on January 1, 2019.

The Ontario government has also announced that the Pay Transparency Act will no longer come into effect on January 1, 2019 as previously planned. Rather, the Act will come into effect at a date to be named.

The finalized Bill 47 changes and the proposed Pay Transparency Act are summarized below. We will keep clients informed of the status of the Pay Transparency Act.

MAKING ONTARIO OPEN FOR BUSINESS ACT, 2018 (BILL 47)

Employment Standards Act, 2000 (ESA)

Minimum Wage

• Keeping the minimum wage at $14 on January 1, 2019 (no rolling back).
• 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 have come into force on January 1, 2019:

• • Right to request changes to schedule or work location after an employee has been employed for at least three months.
  • 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.
  • 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 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.
  • The record-keeping requirements that relate to the above-noted scheduling provisions.

Three 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 hours a day is required to report to work, but works less than three hours, the employee would be paid for three hours.

Personal Emergency Leave

• Replacing the 10 days of Personal Emergency Leave (PEL) with up to three days for personal illness, two days for bereavement, and three days for family responsibilities. All of the above days will be unpaid.
• The three leaves above will only be available to employees employed for at least two consecutive weeks. Currently, PEL is available to all employees regardless of their length of employment (and two days are paid once the employee has been employed for a week).
• If paid or unpaid leave is provided under an employment contract that also qualifies as sick leave, bereavement leave, or family responsibility leave, then the employee will be deemed to have taken the applicable leave under the Act.
• Repealing the provision that prohibits employers from requiring an employee to provide a medical note from a qualified health practitioner. Employers will 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

• Maintaining the right of every worker in Ontario to receive three weeks of paid vacation after five years of service.

Domestic Violence Leave

• Maintaining 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 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 that provided 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 forced an employer to hand over employees’ personal information to a union when 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.
• Requiring the OLRB to determine whether a vote or new vote would be a sufficient remedy, or whether the only sufficient remedy would be to certify the union.

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

• Returning to the six 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.

PAY TRANSPARENCY ACT, 2018

These provisions were scheduled to come into force as of January 1, 2019.  These provisions now will not come into force as of that time and have been indefinitely delayed.

1. Employers will be prohibited from seeking compensation history information from job candidates (s. 4).
2. Employers will be required to include information about expected compensation or range of compensation in any publicly advertised job posting (s. 5).
3. Employers will be required to prepare pay transparency reports, no later than May 15 each year, that include information about the employer, the employer’s workforce composition, and differences in compensation in the employer’s workforce with respect to gender and other prescribed characteristics (s. 6).
   • Employers with 250 or more employees must submit the first pay transparency report no later than May 15, 2020.
   • Employers with 100 or more employees but fewer than 250 employees must submit the first pay transparency report no later than May 15, 2021.
   • Employers who are required to prepare a pay transparency report must post it online or in at least one conspicuous place in the workplace.
   • The Ministry will publish, or otherwise make available to the public, the pay transparency reports submitted to it.

4. Employers will be prohibited from intimidating, dismissing, or otherwise penalizing employees for, among other things, making inquiries about the employee’s compensation, disclosing their compensation or asking the employer to comply with the Act or the regulations (s. 7).
5. Compliance officers will be appointed to enforce the Act (s. 8).
   • Compliance officers will be permitted, without a warrant, to conduct a compliance audit of an employer (s. 11).
   • If the Act is contravened, compliance officers will be permitted to issue a notice and specify a penalty for the contravention (s. 12).
   • A notice of contravention of the Act can be disputed within 30 days after the date of service of the notice (s. 13).
6. The limitation period for a notice of contravention will be one year after the occurrence of the last act or default upon which the contravention is based (s. 16).