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.

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
Hugh R. Dyer
David Tsai
 
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.