Canada: Changing Workplaces Review: Special Advisors' Interim Report

Last Updated: August 8 2016
Article by Hugh R. Dyer, David Tsai and Elliot P. Saccucci

Introduction

In February, 2015, the Ontario Government appointed Michael Mitchell, an arbitrator and formerly a prominent labour lawyer, and former Superior Court Justice John Murray as Special Advisors for the Government's Changing Workplaces Review. Their mandate is to "make recommendations on how the Employment Standards Act, 2000 (the "ESA") and the Labour Relations Act, 1995 (the "LRA") might be reformed to better protect workers while supporting businesses in our changing economy."

The Special Advisors received oral and written submissions in 2015. On July 27, 2016, the Special Advisors released their Interim Report. Rather than make recommendations at this stage, the Special Advisors identified numerous options concerning various elements of the ESA and the LRA for which they are seeking further input. If adopted, some of the options would fundamentally transform labour relations and employment law in Ontario.

The Interim Report is voluminous and contains numerous options. In this Communiqué, we highlight our "Top 10" issues relating to each of the ESA and the LRA. The full report is available here.

Labour Relations Act, 1995

Although all of the topics covered by the Interim Report warrant serious consideration, employers should take particular note of the following:

  • whether Ontario should adopt broader-based bargaining structures (or sectoral bargaining) wherein bargaining would become centralized by industry and geographic sector, allowing for certain standards to be negotiated and then extended to all workplaces within a sector, including across multiple employers;
  • whether the LRA should provide more robust law on related/joint employers, including a rebuttable presumption that the client business of a temporary help agency is the joint employer along with the temporary help agency, as well as the potential for franchisors and franchisees to be found to be joint employers;
  • whether the certification procedures under the LRA should return to a card-based system and whether employers should be required to provide employee lists to unions prior to an application for certification;
  • whether there should be an automatic right to access first contract arbitration or whether an intensive mediation model should be introduced;
  • whether successor rights should apply to contracting out or contract tendering situations, including building services, home care, and such other services specified by a regulation-making authority;
  • whether to reintroduce consolidated bargaining units, as was the case pre-1995, and, if so, whether such a consolidation provision in the LRA should bear a more restrictive or permissive test in deciding on consolidation;
  • whether a prohibition on replacement workers should be reintroduced, or whether a model similar to that existing under the Canada Labour Code – where the use of such workers is permitted except where it undermines a trade union's representational capacity – should be implemented;
  • whether expanded arbitration should be introduced where an employer refuses to reinstate an employee following a legal strike or lock-out, including the potential for such a refusal to be considered an unfair labour practice as is presently the case in Manitoba;
  • whether the Ontario Labour Relations Board (the "OLRB") should be granted expanded remedial and interim order powers, including the power to issue interim orders and decisions pursuant to the Statutory Powers Procedure Act and an elimination of the requirement that the applicant prove irreparable harm in order to be granted relief; and
  • whether the OLRB should provide protection for employees against unjust dismissal after certification but before the effective date of the first contract even where the termination was not motivated, at least in part, by the employee's exercise of rights under the LRA.

Employment Standards Act, 2000

In the Interim Report, the Special Advisors identified a number of areas in the ESA meriting further consideration to adequately address the changing nature of the workforce, the workplace and the economy itself. These include not only substantive employment standards, but also those provisions in the ESA that deal with its scope of application and enforcement. Of particular interest to most employers, the Special Advisors are considering options related to the following issues:

  • whether the ESA should be amended to provide protection against unjust dismissal for non-union employees, meaning employees could not be dismissed without just cause and could be reinstated if they were dismissed without cause;
  • whether the ESA's protections should be extended to "independent contractors" and "dependent contractors";
  • whether the scope of who is an employer should be expanded to make, for example, "joint employers" collectively liable for ESA violations or franchisors liable for employment standards violations of their franchisees, along with addressing other corporate arrangements and structures;
  • the ESA's existing exemptions and special rules for various industries and jobs should be reviewed, including a consideration of whether certain overtime and hours of work exemptions should be eliminated or narrowed (particularly as they pertain to information technology professionals, residential care workers, managers and supervisors, etc.);
  • whether the standards and rules dealing with vacation and public holidays should be modified, for example, by increasing the minimum weeks of vacation or simplifying the manner in which public holiday pay is calculated;
  • whether the ESA's leave of absence standards are sufficient – for example, employee advocates are recommending that the personal emergency leave provisions be expanded to apply to employers with less than 50 employees;
  • whether paid sick days should be introduced under the ESA;
  • while not an issue that received a substantial amount of input, whether the eligibility requirements for and 8-week cap on notice of termination or pay in lieu of notice should be maintained;
  • whether the severance pay provisions should be modified by increasing the 26-week cap on severance pay, along with reducing or eliminating the thresholds (i.e., whether smaller employers should be liable to pay severance pay, whether employees with less than 5 years of service should qualify, etc.); and
  • whether additional amendments to the regulation of temporary help agencies should be made, along with potentially increasing entitlements for assignment employees under the ESA.

Conclusion

The breadth of the issues addressed by the Special Advisors is enormous. While they have proposed numerous options for change, some of which would fundamentally alter the legal foundations for employment and collective bargaining in Ontario, few of the options are recommendations at this stage. The Special Advisors are seeking more input from interested groups including employers and groups representing employees. There are two deadlines for submissions:

  1. concerning the personal emergency leave provisions of the ESA, the deadline is August 31, 2016; and
  2. concerning all other issues, the deadline is October 31, 2016.

Given the importance of the issues addressed, employers should seriously consider expressing their opinions and concerns to the Special Advisors before the relevant deadlines.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Hugh R. Dyer
David Tsai
Elliot P. Saccucci
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