Canada: Ontario Government's Proposed Changes To The Province's Labour And Employment Laws

Last Updated: June 12 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 (the "Final Report") was released for public consumption. As noted in our last communiqué, the Special Advisors made 173 recommendations on how the Employment Standards Act, 2000 (the "ESA") and the Labour Relations Act, 1995 (the "LRA") should be reformed.

On May 30, 2017, the Ontario Government announced its proposal to introduce legislation in response to the Final Report's recommendations, namely, the Fair Workplaces, Better Jobs Act, 2017 ("Proposed Act"). Headlining the Ontario Government's proposed legislative changes was the announcement that the minimum wage for Ontario workers will be increased to $15.00 per hour over the next 18 months. After January 1, 2019, when the $15.00 per hour rate takes effect, the minimum wage will continue to increase by the inflation rate. A full outline of the Ontario Government's plan is available here.

While not exhaustive, of particular note are the following changes being proposed by the Ontario Government, should its proposed legislation be passed by the Legislature. The changes would come into effect on January 1, 2018 or April 1, 2018 for employment standards changes and six months after the coming into force of the Proposed Act  for labour relations changes.

Employment Standards

  • Equal pay for equal work provisions: The proposed legislation would ensure that casual, part-time, temporary and seasonal employees are paid equally to full-time employees when performing the same job for the same employer. This would also apply to employees of temporary help agencies. Exceptions to this new rule would be available based upon: seniority; merit; quality or quantity of production; and other factors (which cannot include gender or employment status).
  • Paid vacation: Employees with five years or more tenure will be entitled to three weeks paid vacation.
  • Scheduling provisions: Employees whose shift is cancelled with less than 48 hours' notice will be entitled to three hours of pay. Employees will also be entitled to a minimum of three hours of call-in pay. Employees will have the right to ask for schedule or location changes after three months of employment, and will also have the right to refuse a shift if given less than four days of notice by their employer. "On call" employees will be entitled to three hours of pay at their regular rate for each 24 hour "on call" period.
  •  Overtime pay: Employees who hold more than one position with an employer and who are working overtime will be entitled to pay at the rate of the position they are working during those overtime hours.
  • Paid emergency leave: The 50 employee threshold for entitlement to personal emergency leave will be eliminated. Two of the ten personal emergency leave days will now be paid.
  •  Misclassification of employees: The ESA definition of "employee" will not be expanded to include dependent contractors as the Special Advisors recommended. However, in the event of a dispute about whether a worker is an independent contractor or an employee, the onus will be on the employer to prove independent contractor status. Employers who misclassify employees may be subject to prosecution, fines and public disclosure of conviction.
  • Family medical leave: Family medical leave would be increased from 8 weeks in a 26-week period to up to 27 weeks in a 52-week period.
  •  Enforcement: The Ontario Government plans to hire 175 new employment standards officers and to increase administrative fines. Employees seeking to file a claim under the ESA would no longer be required to contact their employer first.

Labour Relations

  • Union certification: The proposed legislation would establish card based union certification for the temporary help agency industry, the building services sector and home care and community services industry. In those sectors, a certification vote would not be required in many cases. It would also increase the likelihood of remedial union certification where the employer contravenes the LRA for all sectors and increase access to first contract arbitration.
  • Successor rights: Successor rights would extend to the retendering of building services contracts. These rights would also be extended, by regulation, to the retendering of other publicly funded contracted services.
  • Structure of bargaining units: The Ontario Labour Relations Board (the "OLRB") would be given the power to restructure bargaining units within a single employer where the existing units are no longer appropriate for collective bargaining. The OLRB could also consolidate newly certified bargaining units with other existing units within a single employer.
  • Return to work rights: The LRA would be amended to require the employer to reinstate striking employees at the conclusion of a strike or lock-out subject to certain conditions.
  • Just cause protection: Employees would be protected from being disciplined or discharged without just cause by their employer in the period between certification and the conclusion of a first contract and during the period between the date the employees are in a legal strike or lock-out position and the new collective agreement.
  • Exemptions: The Ministry of Labour will work with other affected ministries and consult with stakeholders to review the recommendation in the Final Report to remove the current exclusions of certain categories of workers from the provisions of the LRA.

Conclusion

While the Ontario Government did not accept all 173 of the recommendations put forward in the Final Report, today's announcement still has the potential for a significant impact on the Ontario marketplace. Particularly impactful for Ontario employers are the Ontario Government's commitment to increase the minimum wage, require equal pay for all workers, including part-time, casual, seasonal and temporary help agency employees, and provide for personal emergency leave – including two days of paid leave – for all workers, as well as robust new scheduling protections for workers.

None of the proposed changes will have the force of law until approved by the Legislature.  Miller Thomson will continue to monitor the legislation.

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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