Canada: Ontario Government's Proposed Legislation To "Create Fairer And Better Workplaces" Includes $15 Minimum Wage And Equal Pay For Part-Time And Full-Time Workers

Last Updated: June 1 2017
Article by George J.A. Vassos

On May 30, 2017, the Ontario government issued its response to a Final Report recently released by two Special Advisors as part of their Changing Workplaces Review.1 This Report included 173 recommendations for amendments to Ontario employment and labour laws. The government has declared that it has "a responsibility to address precarious employment and ensure Ontario workers are protected by updating the province's labour and employment laws." To that end, the government intends to introduce proposed legislation, The Fair Workplaces, Better Jobs Act, 2017, which will incorporate amendments to the Ontario Employment Standards Act, 2000 ("ESA") and the Ontario Labour Relations Act ("OLRA").

Proposed ESA Amendments

If the proposed legislation is passed, all of the proposed amendments to the ESA noted below will be effective January 1, 2018 (except where specified otherwise). To further the stated purposes of creating fairer and better workplaces and safeguarding employees, the government announced that it is moving forward with a number of ESA amendments, including:

Minimum Wage

The general minimum wage (currently $11.40 per hour) would increase 22.8% to $14 on January 1, 2018. On January 1, 2019, the minimum wage would increase an additional 7.1% to $15 per hour, and be adjusted for inflation thereafter. Special minimum wages (including those for students, liquor servers, hunting and fishing guides and homeworkers) also will be increased on January 1, 2018 and January 1, 2019 (but not to the same level as the general minimum wage). In the context of the Changing Workplaces Review, it is surprising that these proposed amendments to minimum wages have been announced, as the Special Advisors' mandate excluded any review of minimum wages; accordingly no mention of minimum wages was made in the Final Report. However, it is perhaps not surprising in the context of the pending provincial election in June 2018.

Equal Pay for Equal Work: Part-Time, Casual, Temporary & Seasonal Employees v. Full-Time Employees

Each part-time, casual, temporary and seasonal employee performing the same job as a full-time employee would be paid the same, except where the wage difference is based on seniority; merit; a system that determines pay by quality or quantity of production; or other factors (employment status and sex do not qualify as exceptions).

Employees would be able to request a review of wages if they believe they are not receiving equal wages to those of full-time employees. The employer would then have to respond either with a pay adjustment or a written explanation why there will be no adjustment. Employees also would be protected against reprisals for asking their employer or other employees about wages.

These proposals would come into force on April 1, 2018.

Equal Pay for Equal Work: Temporary Help Agency Employees

A Temporary Help Agency employee (assignment worker) performing the same job as a permanent employee of the agency's client would be paid the same. Temporary Help Agency employees would be protected from repercussions if inquiring about their wage rate or the wage rate of the client's employee.

These proposals would come into force on April 1, 2018.

Termination of Assignment: Temporary Help Agency Employees

A Temporary Help Agency would have to provide an assignment employee with at least one week's notice of early termination of an assignment scheduled to last longer than three months. If less than one week's notice is given, the assignment employee must be paid the difference unless offered at least one week's worth of reasonable work during the notice period.

Employee Misclassification and Penalties

Employers would be prohibited from misclassifying employees as "independent contractors" who are not entitled to the protections of the ESA. If a dispute arises, the employer would have the onus of proving that the individual is not an employee.

The definition of "employee" would not be amended to include "dependent contractor." The real issue is misclassification; any change to the definition would likely have unintended consequences. An employer that misclassifies an employee could be subject to penalties including prosecution, monetary penalties and disclosure of a conviction.

These proposals would come into force on Royal Assent.

New Scheduling and Payment Rules

New scheduling and payment rules would be implemented as follows:

  • If a shift is cancelled within 48 hours of the scheduled start time, employees must be paid three hours at their regular pay rate.
  • Employees who regularly work more than three hours each day must be paid three hours at their regular pay rate if assigned less than three hours upon reporting to work.
  • A student employed and regularly working more than three hours would be paid for at least three hours even if the student works less than three hours (proposed to come into force on January 1, 2019).
  • If "on call" employees are not called into work, they must be paid three hours at their regular pay rate, and this is required for each 24-hour on-call period.
  • After employment for three months, employees would have the right to request location or schedule changes without fear of reprisal.
  • If there is a collective agreement, that agreement would prevail in place of some of these new rules.

These proposals would come into force on January 1, 2019.

Paid Vacation

The minimum two weeks' paid vacation would be increased to a minimum three weeks' paid vacation after five years with the same employer.

Public Holiday Pay

The formula for calculating public holiday pay would be simplified so that an employee is entitled to the employee's average regular daily wage. Other aspects of the public holiday provisions also would be simplified.

Personal Emergency Leave and Two Paid Days

Personal Emergency Leave ("PEL") of 10 days is currently limited to workplaces with 50 or more employees. This threshold of 50 employees would be eliminated. All employees would be entitled to 10 PEL days per year, including two paid PEL days (notwithstanding that the Special Advisors did not make any recommendation to institute paid PEL days). PEL would be expanded to encompass leave for employees experiencing sexual or domestic violence or the threat of same.

Leave for the Death of a Child and for Crime Related Disappearance

A new leave for up to 104 weeks would be created for a child's death from any cause, as well as a separate leave for crime-related child disappearance.

Family Medical Leave

Family Medical Leave would be increased from up to 8 weeks in a 26-week period to up to 27 weeks in a 52-week period.

Doctor's Notes for Personal Emergency Leave Absences

An employer would be prohibited from requesting a sick note from an employee taking personal emergency leave.

Joint Liability of Related Businesses

The ESA provision requiring proof of "intent or effect" to defeat the purpose of the ESA would be eliminated (i.e., when determining whether a related business can be treated as one employer under the Act and jointly and severally liable for ESA monies owing).

Payments to Employees and Order to Pay

The authority would be created to prescribe additional methods of payment to employees. An Employment Standards Officer would be allowed to issue an order that money be paid directly to an employee when an employer or Temporary Help Agency client owes money to the employee.

Collections by Government and Authorized Collectors

Wage collections by the government or an authorized collector would be improved by allowing a collector to issue warrants, to place liens on real and personal property, and to hold a security while a payment plan is underway. In addition, the government and the collector would be authorized to collect and share personal information.

Electronic Agreements

An electronic agreement between an employer and employee (e.g., an agreement to work excess hours) would be deemed to constitute an agreement in writing.

ESA Claims

Employees would no longer be required to contact their employer before filing an ESA claim. The Director of Employment Standards would no longer be able to refuse to assign an Employment Standards Officer to investigate an ESA claim due to insufficient information from the claimant.

Interest on Unpaid Wages

An Employment Standards Officer would be able to award interest on unpaid wages and any fees unlawfully charged to employees. The Director of Employment Standards would determine interest rates for different provisions of the ESA.

Penalties for ESA Non-Compliance and Publication of Contraventions

Flexibility would be increased with respect to the administrative monetary penalties that an Employment Standards Officer can levy against an employer who is non-compliant. The penalties for non-compliant employers would increase from $250/$500/$1,000 to $350/$700/$1,500. In addition, the Director of Employment Standards would be authorized to publish names of individuals who have been issued a penalty, the amount of the penalty, the date of the contravention and a description of the contravention.

Exclusions and Exemptions from ESA

Some of the current ESA exclusions and exemptions would be removed as follows:

  • the ESA would apply to any person who receives training for work through the employer (but anyone working as part of an experiential learning program run by a university, community college, private career college or high school would still be excluded from the ESA);
  • the ESA would apply to an employee working in a simulated job working environment for rehabilitation ("sheltered workshop") (proposed to come into force January 1, 2019);
  • almost all existing ESA requirements would apply to Crown employees;

Commencing in the fall of 2017, the Ministry of Labour would conduct a review of ESA exemptions and special industry rules (including exemptions for manager and supervisors) in consultation with affected stakeholders.

The Ministry of Labour would work with affected Ministries in a consultation process with stakeholders to review the recommendation of the Special Advisors with respect to removal of exclusions under the OLRA taking into account ongoing litigation.

Enhanced Enforcement of ESA Rights and Obligations

To ensure enforcement of existing ESA laws and these proposed amendments, Ontario would hire 175 more Employment Standards Officers and would launch an education program for employees and small- and medium-sized businesses with respect to ESA rights and obligations.

Once the new Employment Standards Officers are hired by 20202021, all ESA claims would be resolved within 90 days of filing and 10% of Ontario workplaces would be inspected annually. ESA compliance assistance would be provided to new employers, specifically focusing on medium and small businesses.

Proposed OLRA Amendments

If the proposed legislation, The Fair Workplaces, Better Jobs Act, 2017, is passed, then all of the proposed amendments to the OLRA noted below will be effective six months after the Act comes into force. The proposed OLRA amendments include the following:

Union Certification

Card-based union certification would be introduced for the following industries: homecare and community services; building services; and temporary help agencies.

The following changes would be made to the process for certification:

  • certain conditions for remedial certification would be removed to allow for easier certification when an employer engages in misconduct in contravention of the OLRA;
  • access to first contract arbitration would be easier and an intensive mediation component would be added to the process;
  • the Ontario Labour Relations Board ("OLRB") would be required to address first contract mediation/arbitration applications before addressing displacement/decertification applications.

If a union can establish at least 20% support of the employees involved, then the union would be granted access to a list of employees and certain contact information.

The OLRB would be able to conduct votes outside the workplace, including telephone and electronic voting, and to authorize Labour Relations Officers to give directions relating to a vote and voting arrangements to ensure neutrality of the voting process.

Restructuring of Bargaining Units

The OLRB would be able to change the structure of bargaining units for a single employer if existing units are no longer appropriate for collective bargaining. In addition, the OLRB would be able to consolidate newly certified units with other existing units under a single employer where all units are represented by the same union.

Just Cause Protection

Employees would be protected from discipline or discharge without just cause in the period between certification and conclusion of a first contract, as well as between the date of a legal strike or lockout and a new collective agreement.

Return to Work Rights and Procedures

Under the current OLRA, an employee has the right under certain conditions to return to work within six months after commencement of a lawful strike. Under the proposed Act, this six-month limitation would be removed. An employer would be obligated to reinstate an employee at the end of a legal strike or lockout (subject to certain conditions not yet identified) and to provide access to arbitration for enforcement of that obligation.

Successor Rights

Successor rights would be extended to the retendering of building services contracts. The government would also be able to apply expanded successor rights by regulation to the retendering of other contracted services that are publicly funded.

Fines for OLRA Violations

Maximum fines for OLRA violations would be increased to $5,000 for individuals (up from $2,000) and $100,000 for organizations (up from $25,000).

Fast Forward

The government has proposed a broad consultation process for feedback from all stakeholders on the draft legislation that the government will be introducing, but no timetable has been confirmed. Given that the summer recess for the Ontario Legislative Assembly is scheduled from June 5 to September 8, 2017, that most of the proposed ESA amendments are scheduled to be effective January 1, 2018, and that the date of the next Ontario election is June 7, 2018, it can be expected that the Ontario government will move quickly (and likely too quickly for most employers).

The Keep Ontario Working Coalition is a broadly based group of industry associations for various business sectors. The Coalition's focus is to develop sound public policy for creating jobs and growing the Ontario economy. The Coalition is urging the Ontario government "to have an independent third party conduct a comprehensive economic impact analysis on the proposed reforms to consider the unintended consequences to employers." The Coalition also notes that the Ontario government, as the province's biggest employer, must fully understand the cost of the proposed amendments, and the impact on taxpayers, social services and other government agencies. The Coalition concludes that the amendments outlined in The Fair Workplaces, Better Jobs Act, 2017 "do not provide the balance needed to help ensure a competitive environment for Ontario." With the government's promised "broad consultation process" on the proposed amendments, it remains to be seen whether the Ontario government will pay any real heed to the Coalition's important cautions.

Action Plan for Employers

Given the emphasis placed on education and enforcement by the Special Advisors and the Ontario government, it will be important for employers to undertake appropriate employee training with respect to all of the final amendments that are passed. In addition, given the increased scrutiny that will come to bear on "independent contractor" relationships, and potential new penalties for "misclassification," employers would be well-advised to review these relationships and determine whether they should be continued. Finally, employers will have to review hiring letters, employment contracts, policies and handbooks to ensure compliance with the final amendments.

The work has just begun!

Footnote

1. See George Vassos, Canada: Ontario Special Advisors Make 173 Recommendations in their Final Report on the Changing Workplace, Littler Insight (May 25, 2017).

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
George J.A. Vassos
 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.