November 28, 2017
Bill 148, the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”), received Royal Assent on November 27th, 2017. Bill 148 makes extensive changes to Ontario’s Employment Standards Act, 2000; Labour Relations Act, 1995; and Occupational Health and Safety Act. Employers must be prepared to comply with the new legislative requirements as the following provisions of Bill 148 are now in effect in Ontario:
- Consequences for Employee Misclassification – The Employment Standards Act, 2000 (“ESA”) now expressly prohibits employers from misclassifying employees as independent contractors. In the event of a dispute, the legislation outlines that the employer is responsible for proving that an individual is not an employee.
- No “High Heel” Requirements – The Occupational Health and Safety Act (“OHSA”) now prohibits employers from requiring a worker to wear footwear with an “elevated heel” unless the elevated heel is required for the worker to perform his or her work safely. This high heel restriction does not apply to workers in the entertainment and advertising industry.
The following provisions come in to effect on December 3, 2017:
- Critical Illness Leave – What was previously “Critical Illness Childcare Leave” has been changed to “Critical Illness Leave” and has been expanded to allow employees to take leave to care for a critically ill adult family member. This provision allows employees to take leave to care for a person who considers the employee to be like a family member. Employees may take up to 17 weeks to care for critically ill adults, and up to 37 weeks to care for critically ill children.
- Extensions to Parental Leave – The length of job-protected parental leave will be extended under the ESA.The allowances for parental leave have nearly doubled, increasing to 61 weeks for employees who took a pregnancy leave and 63 weeks for employees who did not take a pregnancy leave.
Employers should be aware that these changes are merely the tip of the iceberg, as Bill 148 brings further changes on January 1, 2018. Here is an overview of the rest of the changes brought by Bill 148:
Changes to the Employment Standards Act, 2000
General and Special Minimum Wage Rate Increase – Bill 148 calls for increases to the general minimum wage rate (currently $11.60 per hour) to $14.00 per hour on January 1, 2018 and to $15.00 per hour between January 1, 2019 and October 1, 2019. The special minimum wage rates for liquor servers, students under 18, hunting and fishing guides, and homeworkers will be increased by the same percentage as the general minimum wage.
Equal Pay for Equal Work – The legislation requires employers, including Temporary Help Agencies, to pay casual, part-time, temporary and seasonal employees the same amount as full-time employees who perform substantially the same kind of work in the same establishment; whose performance requires substantially the same skill, effort and responsibility; and who perform work under similar working conditions.
- The legislation prohibits employers from reducing an employee’s pay in order to comply with the above-noted requirements.
- The legislation provides exemptions to the requirements for equal wages where a wage difference is based on seniority, merit, or quantity/quality of production.
- Employees will be allowed to request a review of their wages if they believe they are not receiving equal wages without fear of reprisal. The legislation requires an employer to either adjust the employee’s pay accordingly or provide a written response if the employer disagrees which includes the reasons for the disagreement.
- In the event of a conflict between the legislation and a collective agreement that is in effect on April 1, 2018, the collective agreement will prevail; however, collective agreements made or renewed on or after April 1, 2018 will not prevail over the legislative requirements.
- These requirements come into force on April 1, 2018.
Temporary Help Agencies (“THA”) – The legislation requires THAs, except in certain limited circumstances, to provide assignment employees with at least one (1) weeks’ notice or pay in lieu of notice when an assignment that is scheduled to last longer than three months will be terminated early. The notice requirement will not apply if the THA provides the employee with an alternative work assignment that is reasonable in the circumstances and has an estimated term of one week or more. This change comes into force on January 1, 2018.
Overtime Pay – In circumstances where an employee holds more than one position with a company and works overtime, the legislation requires that overtime be calculated based on the hourly rate for the position in which the employee is working during the overtime period. This change comes into force on January 1, 2018.
Joint Liability – The legislation removes the provision that requires proof that the “intent or effect” is to defeat the purposes of the ESA when determining whether related businesses can be treated as one employer under the ESA. This section comes into force on January 1, 2018.
Paid Vacation – Pursuant to the legislation, employees with five (5) years of service will be entitled to three (3) weeks of paid vacation. This brings Ontario in line with most other provinces. This change comes into force on January 1, 2018.
Public Holiday Pay – The general formula for calculating public holiday day will change to use the total amount of regular wages the employee earned in the preceding pay period divided by the number of days the employee worked in that period. This change comes into force on January 1, 2018.
Complaints and Enforcement – Employees will no longer be required to contact their employer before filing a claim under the ESA. The legislation increases flexibility around the administrative monetary penalties for non-compliance with the ESA and expands the Director’s explicit powers with respect to enforcement of orders to pay. It allows the Director to issue warrants, place liens on real estate and personal property, and to hold security while a payment plan is underway. It also allows the Director to publish the names of those who have been issued a penalty along with a description of the contravention, the date of the contravention and the amount of the penalty. These changes come into force on January 1, 2018.
Electronic Agreements – Bill 148 clarifies that electronic agreements between employers and employees, such as agreements to work excess hours, can serve as agreements in writing. This change comes into force on January 1, 2018.
Employment Standards Enforcement – The government intends to hire up to 175 more employment standards officers and to launch a program to educate both employees in small and medium size businesses about their rights and obligations under the ESA. Once the new employment standards officers are hired, which the government has indicated it will by 2020-2021, the employment standards program will resolve all complaints filed within 90 days and will inspect 1 in 10 Ontario workplaces. They will also provide compliance assistance to new employers with a specific focus on small and medium sized businesses.
Each of the scheduling provisions come in to effect on January 1, 2019. If an existing collective agreement provision conflicts with any of the new scheduling provisions (with the exception of the right to request changes), then the collective agreement will prevail until the earlier of its expiration, or January 1, 2020.
Right to Request Changes – The legislation grants employees who have been employed for three (3) or more months the right to request schedule or location changes and to receive a response from their employer within a reasonable time. It does not provide employees with the right for their requests to be granted.
Right to Refuse Work – The legislation gives employees the right to refuse a demand or request to work or be on call if made less than 96 hours before the start time of the shift. This right doesn’t apply if the employee’s work pertains to: an emergency, to remedy or reduce a threat to public safety, ensure the continued delivery of essential public services, or other reasons that may be prescribed.
Minimum Pay for On-Call Employees – Employees will be entitled to three (3) hours of pay if they are required to be on call and do not work, or are required to work less than three (3) hours. An employee is not entitled to three (3) hours’ pay if they are required to be on call for the purposes of ensuring the continued delivery of an essential public service.
Cancellation Pay - Employees will also be entitled to three (3) hours of pay if their employer cancels their shift with less than 48 hours’ notice. This provision will not apply in circumstances outside of the employer’s control such as fire, power failure, storms, etc.
Paid Emergency Leave – The legislation expands personal emergency leave of ten (10) days per year (previously all unpaid) to apply to all employees, rather than just those in workplaces with 50 or more employees. Two (2) of these days are paid, the rest is unpaid. The legislation requires that the paid days be used first. The legislation prohibits employers from requiring a certificate from a qualified health practitioner as evidence for taking personal emergency leave. The employee must have worked for the employer for at least one (1) week to qualify for the two (2) paid leave days. These changes come into force on January 1, 2018.
Child Death Leave and Crime-Related Child Disappearance Leave – The legislation introduces a new leave for the death of a child for any reason (removing the previous restriction to a death related to crime), and a separate new leave for the crime-related disappearance of a child. Both leaves are for a period of up to 104 weeks. These changes come into force on January 1, 2018.
Family Medical Leave – Bill 148 increases family medical leave from eight (8) weeks in a 26 week period to 28 weeks in a 52 week period. While it is called family medical leave, it has been expanded so that employees can take this leave to care for a person who considers the employee to be like a family member. This change comes into force on January 1, 2018.
New Domestic or Sexual Violence Leave – Bill 148 introduces a new standalone leave for employees who are victims of domestic or sexual violence. The new provision will allow employees to take up to ten (10) days and up to fifteen (15) weeks of leave if they or their children experience domestic or sexual violence, or the threat of domestic or sexual violence. The first five (5) days of leave are to be paid, the remainder of the leave is unpaid. This provision comes in to effect on January 1, 2018.
Leave for Still-Birth or Miscarriage – Bill 148 also increases the length of leave for women who experience a still-birth or miscarriage from six (6) weeks to twelve (12) weeks.
Changes to the Labour Relations Act, 1995 (“LRA”)
The Government has also introduced legislation to make changes to the LRA. All of these changes come in to effect on January 1, 2018. Here are the notable changes:
Card-Based Certification for some Industries – Bill 148 establishes a card-based union certification process for the temporary help agency industry, the building services sector, and home care and community services industry, which allows the Ontario Labour Relations Board (the “OLRB”) to certify a trade unit as the bargaining agent for the employees if the OLRB is satisfied that more than 55 percent of the employees in the bargaining unit are members of the trade union.
Certification Due to Employer Misconduct – Bill 148 now requires the OLRB, in certain circumstances, to certify a trade union as the bargaining agent when an employer engages in misconduct that contravenes the LRA.
First Collective Agreement: Mediation After No Board Report – If parties are unable to effect a first collective agreement, and the Minister has released its “No Board” report advising against appointment of a conciliation Board, then either party can apply for the Minister to appoint a first collective agreement mediator. The mediator will be appointed within 7 days of receiving the application and will meet with the parties to assist them in effecting a collective agreement. Strikes and lockouts, and threats of same, are not permitted starting on the day the mediator is appointed and ending 45 days later.
Employee Lists – Bill 148 provides unions with means to gain access to employee lists and certain contact information if they can demonstrate that they already have the support of 20% of the employees involved. If ordered, the list will include the employee’s names, personal phone numbers and personal email addresses, if available to the employer. The OLRB may also order that the list include information relating to employee job titles, or business addresses; or alternative means to contact employees. Both the employer and the union are required to ensure that all reasonable steps are taken to ensure the confidentiality and security of the list.
Successor Rights – Bill 148 extends successor rights to the retendering of building services contracts. The legislation outlines that a sale of a business will be deemed to have occurred in circumstances where employees perform services at a premises, their employer ceases, in whole or in part, to provide services at those premises, and substantially similar services are subsequently provided at the premises under the direction of another employer;
Consolidate After Certification – Bill 148 allows the OLRB to consolidate newly certified bargaining units with other existing bargaining units under a single employer where those units are represented by the same bargaining agent.
Change Structure of Bargaining Units upon Agreement – Employers and trade unions may now mutually seek consent from the OLRB to alter the structure of existing bargaining units. The employer and the union may now agree, on a joint application to the OLRB, to make certain changes to bargaining units.
No Discipline or Discharge Following Lawful Strike Or Lockout – Bill 148 explicitly protects employees from being disciplined or discharged without just cause by their employer in the period between the date employees are in a legal strike or lock-out position until the date the new collective agreement is entered into. Further, employers are required to reinstate employees 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.
- Bill 148 explicitly allows the OLRB to conduct votes outside the workplace;
- Empowers the OLRB to authorize labour relations officers to give directions relating to the voting process and voting arrangements in order to ensure the neutrality of the voting process; and
- Increases maximum fines under the LRA to $5,000.00 for individuals and $100,000.00 for organizations. This is a significant increase as the current maximum fine for organizations is $25,000.00.
Make Sure Your Workplace is Compliant
Employers need to review their policies to ensure compliance with these changes, if they haven’t already done so. As noted above, Bill 148 provides for a number of changes to come in to effect on January 1, 2018. Failure to comply with the changes could result in liability by way of complaints to the Ministry of Labour or penalties imposed by the Ministry of Labour for non-compliance with Bill 148.
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 lawyers by email or telephone.