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October 29, 2018

Open Season on Ontario’s Employment & Labour Legislation

Authors Amelia Cooke and Mallory Adams

The Ontario government recently promised to repeal much of the Fair Workplaces, Better Jobs Act (“Bill 148”) and they are now delivering on that promise with their newly introduced Making Ontario Open for Business Act (“Bill 47”). Bill 47, introduced on October 23, 2018, proposes to repeal many of the changes the former liberal government made to Ontario’s employment and labour laws with Bill 148. We have outlined some of the key changes Bill 47 proposes below.

Changes to the Employment Standards Act (“ESA”)

  • Personal emergency leave – This leave will be removed in its entirety and replaced by three separate unpaid leaves: sick leave (3 days), family responsibility leave (3 days), and bereavement leave (2 days). The bill also removes the prohibition on employers requesting medical documentation to support entitlement to these leaves.

     

  • Minimum wage – Instead of increasing to $15.00/hour on January 1, 2019, the minimum wage will stay at $14.00/hour until at least October 2020 when it will be adjusted for inflation.

     

  • Scheduling – Many of the scheduling changes introduced by Bill 148, which were scheduled to come into effect on January 1, 2019, will be repealed, including:
  • the requirement for employers to respond to an employee’s request for changes to their schedule or work location;
  • an employee’s right to refuse a request to work or be on call with less than 96-hours’ notice;
  • the on-call pay provisions; and,
  • the shift cancellation pay provisions.

 

Please note: under Bill 47 employers will still be required to pay employees who regularly work more than three hours for a minimum of three hours of work even if they work less than three hours.

  • Equal Pay for Equal Work – Bill 47 will remove the prohibition on compensating employees differently based on their employment status; however, the prohibition on compensating employees differently based on their sex remains in effect.

     

  • Public Holiday Pay – The calculation of public holiday pay will revert back to the pre-Bill 148 formula i.e. the total amount of regular wages earned, and vacation pay payable in the four weeks before the work week in which the holiday occurs, divided by 20.

     

  • Misclassification – Bill 47 will remove the express onus on employers to prove that a worker is not an employee when there is a dispute under the ESA as to whether a worker is an employee or an independent contractor.

     

  • Penalties – Bill 47 will restore the administrative penalties for contravention to the pre-Bill 148 amounts.

 

While Bill 47 scrapped much of the previous government’s reforms to the ESA, a few provisions remain unscathed for now, including: the increased vacation entitlements for employees with five years of service or more, the newly introduced domestic and sexual violence leave, and changes made to the other long-term leave provisions of the ESA.  

Changes to the Labour Relations Act (“LRA”)

  • Lists of Employees – Employers will no longer be required to provide employee lists to trade unions who demonstrate at least 20% support in the proposed bargaining unit.

     

  • Remedial Certification – The pre-Bill 148 test and pre-conditions for the Ontario Labour Relations Board (“OLRB”) to certify a union for employer misconduct will be reinstated.

     

  • Card-Based Certification – The provisions allowing for card-based certification for the temporary help agency industry, the building services sector, and home care and community services industry will be repealed.

     

  • Fines – maximum fines for contravention of the LRA will return to pre-Bill 148 amounts.

 

Final Thoughts

The changes introduced in Bill 47 have not yet been passed and are not in effect. While there is no clearly set date for when these changes will take effect, many of the provisions of Bill 47 repeal changes that are currently set to take effect on January 1, 2019, which suggests that the bill will likely come into force in time for the New Year. We will continue to monitor Bill 47’s status and will provide updates on its progress on our blog.

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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