Canada: Ontario's Proposed Legislative Changes Are About To Make Life A lot More Interesting For Employers

Alberta is not the only province that is making significant changes to workplace legislation. Ontario has jumped on the bandwagon with legislation introduced at the end of May that impacts employers with both unionized and non-unionized workforces.  These changes were made in response to a government-commissioned report that made 173 recommendations addressing precarious work.

Changes to the Labour Relations Act

Some of the proposed changes to the Ontario Labour Relations Act will impact employers by making it easier for employees to unionize. Those changes include:

  1. Allowing unions to access the employer's employee lists including certain contact information if the union can demonstrate that it has achieved the support of 20% of employees in the bargaining unit it wishes to represent;
  2. Card check certification for the building services sector, home care, and community services industry;
  3. Expressly empowering the Ontario Labour Relations Board to conduct certification votes outside the workplace, including electronically and by telephone;
  4. Eliminating certain conditions for remedial (penalty) union certification, which will allow unions to more easily become certified when an employer engages in misconduct that contravenes the Labour Relations Act;
  5. Making access to first contract arbitration easier and adding an intensive mediation component to the process; and
  6. Protecting employees from being terminated without just cause in the period between certification and the conclusion of a first contract.

Other changes to the Labour Relations Act include extending successor rights to the retendering of building services contracts and other publicly funded contracting services. In addition, the Board will be permitted to consolidate newly certified bargaining units with other existing bargaining units under a single employer where those units are represented by the same bargaining agent. It will also be able to change the structure of bargaining units within a single employer where the existing bargaining units are no longer appropriate for collective bargaining.

In regard to strikes, the amendments to the Labour Relations Act will allow employees the right, under certain conditions, to return to work at any time. Employers will be required to reinstate employees at the conclusion of a legal strike or lockout, subject to certain conditions, and to provide access to the grievance arbitration system so that the obligation can be enforced.

Changes to the Employment Standards Act

Changes that will impact non-unionized workforces include an increase in the minimum wage to $15.00 per hour. Phased increases are set to occur on January 1, 2018 to $14.00 per hour and January 1, 2019 to $15.00 per hour. This increase will make Alberta and Ontario's minimum wage the highest in Canada with Alberta's minimum wage increase effective October 1, 2018.

Other changes to the Employment Standards Act include:

  1. Part-time, casual, temporary and seasonal workers will receive equal pay to full-time workers for equal work (unless disparate pay can be justified based on seniority or merit systems, systems that determine pay by quantity or quality of production, or other objective criteria);
  2. Employees who have been with the same company for more than five years will receive an increased minimum vacation from two weeks to three weeks;
  3. All employees will be entitled to ten days of Personal Emergency Leave per year, two of them paid. Domestic or sexual violence will be included as a valid reason for taking this type of leave. Employers will be prohibited from requesting a sick note for employees taking Personal Emergency Leave;
  4. Family Medical Leave will increase to 27 weeks in a 52-week period;
  5. Employees who request leave for the death of a child will be entitled to 104 weeks;
  6. Employees on call must be paid three hours at their regular rate;
  7. Employees who have worked more than three consecutive months will have the right to request changes to their schedule;
  8. Employers that misclassify workers as "independent contractors" for the purpose of avoiding legislative obligations will be subject to fines, penalties, prosecution and public disclosure of conviction. The employer will bear the onus of proving that the individual is not an employee;
  9. Higher fines will be implemented for employers found to have violated employment standards laws (up to $1500); and
  10. New scheduling rules will require employers to pay three hours of wages if a shift is cancelled without 48 hours' notice.

The news has not been well-received by small business owners, who warn that the changes will lead to job losses and economic hardship.

Note to Employers

Employers will need to review these legislative changes carefully to ensure that their employment contracts and employee policies are updated and compliant. In particular, employers who classify their employees as independent contractors will want to ensure that they are classified correctly.   If in doubt, seek legal advice from trusted lawyers who specialize in labour and employment law.

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
Julie Menten
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22 Nov 2018, Workshop, Vancouver, Canada

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