Canada: Ontario's Changing Workplaces Review: Special Advisors' Final Report

Last Updated: June 5 2017
Article by Hugh R. Dyer, David Tsai and Elliot P. Saccucci

Introduction

On May 23, 2017, the Final Report of the Changing Workplaces Review commissioned by the Ontario Government was released for public consumption. The Final Report is the culmination of over two years of consultation by the Special Advisors appointed to conduct the Changing Workplaces Review – Mr. C. Michael Mitchell and Mr. Justice John C. Murray – with workers, unions and businesses on a wide range of work-related issues.

In the lengthy Final Report, the Special Advisors make over 170 recommendations on how the Employment Standards Act, 2000 (the "ESA") and the Labour Relations Act, 1995 (the "LRA") should be reformed. The wide-ranging reforms proposed by the Special Advisors include changes to collective bargaining, wage requirements for casual, part-time, temporary, contract and seasonal employees, workplace safety and inspection practices, and paid vacation time.

The Ontario Government has yet to announce which of the Final Report's recommendations it will follow. However, both Premier Kathleen Wynne and Minister of Labour Kevin Flynn have issued public statements indicating that the Ontario Government will act swiftly on the Special Advisors' recommendations. Indeed, Minister Flynn advised in his statement accompanying the Final Report that "the important changes necessary" will be announced by the Ontario Government "within the next week".

As we await the Ontario Government's formal response to the Final Report, we take this opportunity to highlight some important recommendations made by the Special Advisors relating to each of the ESA and the LRA, along with a number of general recommendations. The full Final Report is available here.

Employment Standards Act, 2000

Of particular interest to most employers, the Special Advisors have made the following recommendations in the Final Report regarding substantive employment standards, the scope of the application of the ESA and its enforcement:

  • while the Special Advisors found that the existing system of hours of work and overtime pay regulation works effectively, they recommend eliminating the requirement to obtain Ministry of Labour approval for employees to work 48 to 60 hours a week to lessen the administrative burden for employers;
  • paid vacation should increase from two weeks to three weeks after five years of employment;
  • the personal emergency leave entitlement should be amended to provide for an annual entitlement of seven days that applies to employees in all workplaces, not just those employed in workplaces with 50 or more employees. This would be supplemented by the creation of an independent entitlement of up to three unpaid days of bereavement leave;
  • the ESA definition of "employees" should be expanded to include "dependent contractors" (i.e. a person who, while not an employee, is in a position of economic dependence and under an obligation to perform duties for an employer);
  • the exemption for managerial and supervisory employees should be revised so that both salary and job duties are considered as part of the test to determine who is a manager. To be exempt from the hours of work and overtime requirements, the employee's salary would have to equal at least 150% of the minimum wage; and
  • part-time, casual, temporary, contract and seasonal employees should be paid at the same rate as full-time employees in comparable positions, unless there are objective grounds, such as seniority, merit or other objective factors, that justify a difference in pay.

Labour Relations Act, 1995

Although not all of the topics covered by the Interim Report were ultimately targeted for amendments in the Final Report, there are a number of recommendations made that could have significant implications for employers if adopted by the Ontario Government. These recommendations include the following:

  • several categories of workers that are currently excluded from the LRA – for example, domestic workers; hunters and trappers; members of the architectural, dental, land surveying, legal and medical professions; and agricultural and horticultural employees – should no longer be excluded from the provisions of the LRA;
  • the secret ballot process for certification should be preserved but modified so that employer misconduct results in remedial certification and automatic access to first contract arbitration. Unions will have greater access to contact information for prospective bargaining unit members during organizing campaigns;
  • for the purposes of the LRA, employees of temporary help agencies who are assigned to an employer should be deemed employees of that employer;
  • the Ontario Labour Relations Board (the "OLRB") should have the power to modify and consolidate bargaining units, including cases in which more than one union is involved, where the OLRB is satisfied that the unit or units are no longer appropriate for collective bargaining in the circumstances. Furthermore, the OLRB should have the power, in sectors and industries where employees have been historically underrepresented by unions, to consolidate existing and/or newly certified bargaining units involving the same employers and the same union, to contribute to the development of effective collective bargaining in these industries. This may be accomplished by certifying single locations and then consolidating the unit thereafter with additional locations. The OLRB would be given the power to direct that terms of a collective agreement apply in the varied or consolidated unit;
  • collective bargaining in the franchise space should be amended such that bargaining units of different franchisees of the same franchisor – with the same union in the same geographic area – would be required to bargain together centrally. Also recommended is the creation of "employer bargaining agencies" made up of representatives of the franchisee employers, which would represent the franchisees at the bargaining table with the union.  In such a case, unless the franchisor is also an employer in the affected geographic area, it would not have a seat at the bargaining table. The OLRB would be given the authority to require the formation of an employer bargaining agency and set its terms, if necessary. The franchisees' obligation to bargain centrally would remain so long as the union held bargaining rights;
  • successor rights should be applied to unions in the building services industries, including: security, food services, and cleaning, as well as government funded home care when work is sub-contracted or re-tendered. The OLRB should be granted regulatory authority to broaden the scope of successor rights to additional industries in the future;
  • the six month period – from the time of the commencement of a legal strike – for a striking employee to apply to be reinstated should be eliminated, and the LRA should be amended to provide arbitration for the refusal to reinstate an employee at the conclusion of a strike or lock-out, or for any employee discipline during the course of a strike or lock-out or after the expiry of a collective agreement;
  • although the OLRB currently has the power under s. 98 of the LRA to order reinstatement on an interim basis in instances where irreparable harm is proven, the Final Report recommends that s. 98 be repealed and that the OLRB be granted expanded, substantive remedial and interim order powers, including the power to issue interim orders and decisions pursuant to s. 16.1(1) of the Statutory Powers Procedure Act, which has no requirement for demonstrating irreparable harm; and
  • the Ministry of Labour should be granted expanded powers of enforcement and administration, including proactive and targeted employer inspections.

General Recommendations

In addition to the specific recommended amendments to the ESA and the LRA highlighted above, the Final Report includes several general recommendations proposing changes to the legislative framework, compliance and enforcement, litigation of complaints and claims, and the administration of programs.

Particularly significant is the Special Advisors' recommendation that the ESA, LRA and Occupational Health and Safety Act be consolidated under a single Workplace Rights Act (the "WRA"). The consolidated WRA would comprise three parts entitled: (i) Rights to Basic Terms and Conditions of Employment; (ii) Rights to Collective Bargaining; and (iii) Rights to a Safe and Healthy Workplace, with the Special Advisors recommending that this new act be subject to an independent review of the legislation every five to seven years.

Other general recommendations of note include: (i) the creation of a Workplace Forum that would bring together senior representatives of government, business, organized labour and employee advocates on a regular basis; and (ii) the development of a program for employee and employer education with respect to their workplace rights and obligations.

Conclusion    

While the Changing Workplaces Review only directly concerns Ontario employers, employers in other jurisdictions may see their governments consider similar changes.

It is worth emphasizing that the Special Advisors' Final Report contains recommendations only and that the extent to which any of the recommendations will lead to legislative changes remains unclear. Moreover, while the Ontario Government's formal response to the Final Report is expected to be released in the coming days, any changes that the Ontario Government endorses could take several months to years to implement and could be impacted by other priorities or events including the next Ontario provincial election. Miller Thomson will provide regular updates as developments occur.

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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