Canada: Wynne Government Intends To Propose The Fair Workplaces, Better Jobs Act, 2017 In Response To Changing Workplaces Review Recommendations

Yesterday Ontario Premier Kathleen Wynne and Labour Minister Kevin Flynn unveiled the government's formal response to the Changing Workplaces Review Final Report, and the special advisors' 173 recommendations for change to the Employment Standards Act, 2000 (ESA) and the Labour Relations Act, 1995 (LRA). Although Premier Wynne's Liberal government has not embraced all of these recommendations, with the stated goals of creating more opportunity and security for workers, its blueprint for overhauling the province's current employment and labour laws represents a very sharp swing to the left.

Do not expect to see any actual legislation for several months. The announcement comes in the final week of the legislative session, just two days before MPPs rise for the summer break. Further, it appears there will be some opportunity for employer groups and others to have their voices heard before any legislation is passed. According to the news release from the Office of the Premier, Ontario is proposing a "broad consultation process" to gain feedback from a wide variety of stakeholders on the draft legislation it intends to introduce. Given that some of the proposals, if passed, would come into effect as early as January 1, 2018, we should expect a busy fall session.

Read the Ministry of Labour backgrounder

ESA proposals

Proposed changes to the ESA, if eventually enacted, would include the following.

Minimum Wage Increases

In the Changing Workplaces Review Final Report, the special advisors did not address the general minimum wage, although they did comment on the minimum wage differentials for liquor servers and students under age 18. Nonetheless, and absent any recommendation in the special advisors' 419-page final report, the Wynne government has tabled a proposal to increase the general minimum wage to $14 per hour on January 1, 2018, and $15 per hour on January 1, 2019, followed by annual increases at the rate of inflation.

The current special minimum wage rates for students under 18, liquor servers, hunting and fishing guides and homeworkers (employees doing paid work in their own homes for an employer) would remain in effect, with increases by the same percentage as the general minimum wage, as follows:  

Equal Pay for Equal Work Provisions

Part-time, casual, temporary and seasonal employees doing the same job as full-time employees would be paid equally to full-time employees when performing the same job for the same employer. An exception to the equal wage requirement would apply where a wage difference is based on (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; or (d) other factors justifying the difference on objective grounds.

Temporary help agency employees doing the same job as permanent employees at the agencies' client companies would be paid equally to those permanent employees.

If passed, these equal pay proposals would come into force on April 1, 2018.

Scheduling

The proposed legislation, if passed, would establish new scheduling rules to come into force on January 1, 2019, including the following.

After having been employed for three months, employees would have the right to request schedule or location changes. All employees would be permitted to refuse shifts if asked to work with fewer than four days' notice. Employees "on-call" who are not called into work would be paid for three hours, at their regular rate, for each 24-hour period that they are on call. If a shift is cancelled within 48 hours of its start, affected employees would be entitled to three hours' pay at their regular rate.

Employee Misclassification

The proposed legislation would prohibit employers from misclassifying employees as "independent contractors." In the event of a dispute, the onus would be on the employer to prove that the individual is not an employee. Employers who misclassify employees could be subject to penalties including prosecution, public disclosure of a conviction and monetary penalties. If passed, these proposals would come into force on royal assent.

Notably, the government has confirmed that the definition of "employee" will not be broadened to include a "dependent contractor." Acknowledging that doing so would "create significant legal and potentially economic uncertainties" the Ministry of Labour backgrounder notes that a recent Law Commission of Ontario study specifically advised against a "dependent contractor" provision as its scope would be very difficult to define without inadvertently capturing independent contractors.

Joint Liability

The proposed legislation would remove the requirement for proof of "intent or effect" to defeat the purpose of the ESA when determining whether related businesses can be treated as one employer, and held jointly and severally liable for monies owed under the ESA. If passed, this proposal would come into effect on January 1, 2018.

Paid Vacation

The minimum paid vacation entitlement for employees with five or more years of service would increase from two to three weeks a year. If passed, this proposal would come into effect on January 1, 2018.

Personal Emergency Leave

The proposed legislation would eliminate the 50+ employee threshold for personal emergency leave (PEL), entitling all employees to 10 PEL days per year, including two paid PEL days. The reasons for taking PEL days would be expanded so that employees experiencing domestic or sexual violence, or the threat of such violence, could take the leave.

The proposed changes would also prohibit an employer from requesting a sick note from an employee taking PEL.

If passed, the PEL proposals would come into effect on January 1, 2018.

Leaves for the Death of a Child and for Crime-Related Disappearance

The proposed legislation would create a new, separate leave (presumably unpaid) for a period of up to 104 weeks in the event of a child's death from any cause. It would also establish a separate leave for a period of up to 104 weeks for the crime-related disappearance of a child. If passed, these proposals would come into force on January 1, 2018.

Exemptions and Special Industry Rules

At this time, there are no proposed changes to the current array of ESA exemptions and special industry rules. However, in fall 2017, in consultation with affected stakeholders, the ministry will conduct a review of the exemptions and special rules, including the exemptions currently in place for managers and supervisors.

Penalties for Non-Compliance

The government also intends to amend an ESA regulation to increase the maximum penalties for non-compliant employers from $250/$500/$1,000 to $350/$700/$1,500.

Further, proposed changes would allow the Director of Employment Standards to publish (including online) the names of individuals who have been issued a penalty, a description and the date of the contravention, and the amount of the penalty. If this proposal passes, it would come into force on January 1, 2018.

LRA proposals

Key proposals for reforming the LRA are clearly intended to make it easier for unions to obtain bargaining rights. If the proposed Fair Workplaces, Better Jobs Act, 2017 is passed, all LRA proposals, including those summarized below, would come into effect six months after that act comes into force.

Union Certification

The proposed legislation would establish card-based certification for the temporary help agency industry, the building services industry and the home care and community services industry.

Proposals would also make several changes to the union certification process, including by:

  • requiring the employer to disclose employee lists and certain contact information if the union demonstrates it has already achieved the support of 20% of the employees involved;
  • allowing unions to certify more easily when an employer engages in misconduct that contravenes the LRA; and
  • making first contract arbitration more accessible by adding an intensive mediation component to the process.

Successor Rights

Proposals include extending successor rights to the retendering of building services contracts and would also enable the government to apply successor rights, by regulation, to the retendering of other publicly funded contracted services.

Structure of Bargaining Units

Proposals would permit the Ontario Labour Relations Board (OLRB) to change the structure of bargaining units within a single employer, when the existing units are no longer appropriate for collective bargaining. The proposals would also permit the OLRB to consolidate newly certified bargaining units under a single employer, where those units are represented by the same bargaining agent.

Return to Work Rights

Currently, striking employees have a general right to return to work within six months of a lawful strike. Proposed changes would remove the six-month limitation. The proposed changes would also (subject to certain limitations) require employers to reinstate an employee at the conclusion of a lawful strike or lockout, and provide access to grievance arbitration to enforce that obligation.

Just Cause Protection

Proposals would protect employees from discipline or discharge without just cause in the period between certification and the conclusion of a first contract, as well as during the period between the date the parties are in legal strike/lockout position and the new collective agreement.

Fines

Currently, on conviction for an offence for a violation of the LRA, individuals can be fined up to $5,000 and corporations, employers' organizations, unions and trade union councils can be fined up to $25,000. Each day that a contravention continues may constitute a separate offence. As the special advisors noted in the Changing Workplaces Review Final Report, these maximum amounts have not changed since 1990.

The proposed legislation, if passed, would increase these maximum amounts to make individuals liable to a fine of up to $5,000, and corporations, employers' organizations, unions and trade union councils liable to a fine of up to $100,000.

What's next?

As indicated above, the Wynne government, which has been plagued with extremely low public approval ratings for some time now, will be proposing a broad consultation process to gain feedback from a wide variety of stakeholders on the draft legislation it intends to introduce.

There is no doubt that Premier Wynne's plan for reforming Ontario's employment and labour laws will be more popular with unions and employee advocacy groups than with the employer community. Indeed, the proposed reforms announced today are not surprising, given that the Wynne government mandated the special advisors who conducted the Changing Workplaces Review to focus on precarious work and decreased job security for employees. It remains to be seen, however, how the proposed reforms, if enacted, would help provide an environment supportive of business in the changing economy.

In fact, over the past several months employer groups have challenged whether radical reforms to Ontario's labour and employment laws are even necessary. In an interview with CBC News in February 2017, Ontario Chamber of Commerce Vice President Karl Baldauf cautioned against "putting businesses in a position where they will actually be less inclined to expand as a result of new, onerous regulations." The Chamber of Commerce has also urged the government not to make changes without clear evidence about the costs and benefits.  

Speaking to members of the press yesterday, Premier Wynne admitted that she expects a backlash from business groups concerned about rising labour costs. As reported by the Toronto Star, the Premier expects, "There's going to be howling. The business community will be yelling at me."

She has likely got that right.


About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.

Law around the world
nortonrosefulbright.com

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions