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May 26, 2017

Changes Are Coming to Employment and Labour Legislation in Ontario

Authors Hendrik Nieuwland and Amelia Cooke

The Changing Workplaces Review Final Report (“report”) was publicly released on Tuesday May 23, 2017. The report recommends many changes to the current labour and employment framework in Ontario. The Ontario government has not yet commented on whether it plans to implement any of the report’s recommendations; however, we expect this information will be released shortly. In the interim, for those who are interested in learning about what changes may be coming down the pipeline, the recommendations outlined in the report include the following: 


Recommendations for Employment Standards

  • Changes to Enforcement – The Ministry should move away from complaint-based enforcement to strategic enforcement across various sectors.As part of this, the Ontario Labour Relations Board should adjudicate complaints that are not investigated through the use of regionally based adjudicators.
  • Temporary Foreign Workers – No termination of a temporary foreign worker (whether for reprisal or other reasons) should be effective until an order is made by a neutral adjudicator permitting the termination.
  • Access to Justice – Increase both the resources and mandate of the Office of the Worker Advisor and remove the requirement for employees to inform employers before filing a claim. The report is also supportive of measures to increase anonymous tips.
  • Orders and Penalties – Increase penalties for breaches to the Employment Standards Act, 2000 (“ESA”), allow for orders for employers to pay for the cost of an investigation, and allow for employees to be paid interest on unpaid monetary entitlements.
  • Minimum Wage – Eliminate exemptions for students with respect to minimum wage and the “three-hour rule” and phase out liquor server minimum wage.
  • Supervisor/Manager Exemptions – Revise the manager/supervisor exemption so that both salary and job duties are considered.
  • Part-time, Casual, Temporary, Contract, and Seasonal Employees – Limit differential pay for these employees unless there are objective grounds (seniority, merit, etc.) to justify the pay differential.The report clarifies that this rule should only apply to wages and not pension or benefits at this time.
  • Scheduling Requests – Implement a sector-specific approach with respect to scheduling (with fast food and retail sectors as the priority for review). In addition, implement a new rule that gives certain employees the right to request and discuss with their employer a change in hours of work, a more flexible schedule, or a change to the location of work. The rule should require employers give reasons in writing if the request is refused.
  • Hours of Work and Overtime – Eliminate the requirement to get Ministry of Labour approval for employees to work 48-60 hours a week and blended overtime rates. In addition, limit the ability to average hours of work to circumstances in which it would allow for flexibilities such as a compressed work week, continental shift, or to provide for employer scheduling requirements where the total number of hours worked does not exceed the threshold for overtime over the averaging period.
  • Personal Emergency Leave Changes – Expand entitlement to personal emergency leave to all employees rather than just those employed in workplaces with 50 or more employees. Reduce the amount of personal emergency leave to an annual entitlement of seven (7) days, and expand it to include domestic violence as a valid reason for absence.
  • Cost of Medical Notes – Require employers to pay for doctor’s notes if they request them from an employee.
  • Addition of Bereavement Leave – Remove bereavement leave from the personal emergency leave provisions and make it an independent entitlement for up to three unpaid days for the family members covered by the current legislation. The availability of the leave should not be tied or capped by the use of personal emergency leaves taken by an employee.
  • Expansion of Other Leaves – Increase family medical leave from 8 weeks in a 26 week period to 26 weeks in a 52 week period to mirror the new employment insurance scheme.Expand the leave for crime-related death of a child to include the death of a child whether crime-related or not.
  • Public Holiday Pay – Review this part of the ESA in its entirety to simplify the provisions and make them easier to understand.
  • Vacation – In line with other provinces, vacation entitlement ought to increase to three (3) weeks per year after five (5) years of continuous service.
  • Dependent Contractors – Dependent contractors should be added to the definition of employee in the ESA in a similar manner to the Labour Relations Act (“LRA”).


    Recommendations for Labour Standards

  • Exemptions – Remove exemptions for certain groups of employees including domestics, hunters and trappers, members of the architectural, dental, land surveying, legal or medical profession employed in a professional capacity, and, agricultural and horticultural employees.
  • Secret Ballot Voting – Maintain the secret ballot voting procedure provided that the following recommendations are also accepted:
    • in circumstances where employer misconduct impacts upon the ability to discern an employee’s true wishes, remedial certification and access to first contract arbitration should follow unless the union bargains in bad faith or disqualifies itself from first contract arbitration;
    • the “mediation-intensive” model used in British Columbia should be considered as reasonable model for Ontario to significantly improve labour relations;
    • decertification applications should be deemed untimely until after the mediation or first contract arbitration process has taken place; and
    • unions with appropriate support in a proposed bargaining unit (approximately 20% of the potential bargaining unit) should be able to obtain contact information of employees in advance of a certification application.
  • Electronic Membership Evidence and Voting – The OLRB should update rules and practices to allow for electronic submission of information, including membership evidence and should be granted the power to conduct votes outside the workplace (by phone or internet).
  • Power to Modify Bargaining Unit Structures – The OLRB should have the power to modify bargaining unit structures if it is satisfied that the bargaining unit is no longer appropriate for collective bargaining in the circumstances. This should not be restricted to cases where the same union is involved.
  • Power to Consolidate Bargaining Units - The OLRB should have the power, in sectors or industries where employees have been historically underrepresented by unions, to consolidate existing and/or newly certified bargaining units involving the same employer and the same union.
  • Franchisees – Treat franchisees of the same franchisor in an analogous way to a single employer with multiple locations in industries where employees have been historically underrepresented by unions and require franchisees of the same franchisor to bargain together.
  • Temporary Help Agencies – Anyone assigned by temporary help agencies to perform work for clients of the agency should be deemed to be an employee of the client rather than the agency for the purposes of the LRA.
  • Remedial Powers of the OLRB – Grant the OLRB board powers to make substantive interim orders on all matters that come before it, pursuant to the Statutory Powers and Procedures Act.
  • Fines and Penalties – Increase the maximum fines to $5,000 for individuals and $100,000 for employers and unions who contravene the LRA.
  • Striking Employee Rights – Eliminate the six (6) month time period for striking employees to make an application to return to work and amend the LRA to provide for arbitration of: an employer’s refusal to reinstate an employee at the conclusion of a strike or lock-out, or any discipline of an employee during a legal strike or lock-out or after the expiry of a collective agreement.
  • Successor Rights and Sale of Business – Successor rights, which do not currently exist in the case of contracting out and re-tendering contracts in service sectors, should be applied to the building services industry (specifically: security, food services, cleaning) and government-funded home care, with possible future expansion of coverage to other services or sectors.

 

It is important to note that none of the report’s recommendations have been implemented at this time. The Ministry of Labour is expected to respond to the report within the week. We expect that the Ministry’s response will signal which recommendations it plans to implement and we will provide an update on what changes to expect at that time. 

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.

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