Canada: Bill 148 Passes Last Hurdle With Further Significant Amendments Proclaimed Into Law

Last Updated: December 1 2017
Article by Susan Crawford

Bill 148 – the Fair Workplaces, Better Jobs Act, 2017, received Royal Assent on November 27, 2017. This controversial legislation has been the source of unprecedented debate and commentary. We set out below an executive summary of the final changes and implementation dates for those amendments that will be most impactful to employers. Click HERE For CCP's more comprehensive review of the legislation, impacts and recommendations to employers.

Employment Standards Act

i. Minimum Wage Increase:

When:

January 1, 2018 – General minimum hourly wage increasing to $14.00.

January 1, 2019 – General minimum hourly wage increasing to $15.00.

ii. Vacation Entitlement

When: January 1, 2018 – All employees with 5 years of employment will be entitled to 3 weeks' vacation and 6% vacation pay.

iii. Personal Emergency Leave Changes

When: January 1, 2018 – Removal of the 50 employee threshold for entitlement, first two days must now be paid, employers prohibited from requiring a doctor's note to support leave.

iv. Equal Pay for Equal Work

When: April 1, 2018 – Part-time, casual and temporary employees will be entitled to the same rate of pay as full-time employees performing substantially similar (defined as "substantially the same but not identical") work. Pay differences only permitted when difference is based on a (i) seniority system, (ii) pay merit system, (iii) quantity or quality of productions, or, (iv) some other objective factor.

v. New Scheduling Obligations

When: January 1, 2019

  • After 3 months employment, employees can request changes to work schedule or location.
  • Right to refuse shifts where asked to work fewer than 4 days (96 hours) before shift.
  • Entitlement to at least 3 hours of regular pay where an employee: (i) is on-call and not called into work; (ii) attends for a 3+ hour shift and works fewer than 3 hours; or, (iii) has a scheduled day of work cancelled within 48 hours of intended start time.

vi. New Public Holiday Pay Calculation

When: January 1, 2018 – New calculation based on the wages paid to an employee in the pay period prior to public holiday divided by the days worked in the pay period.

vii. "Related Employer" Definition Expanded

When: January 1, 2018 – Amendments to definition such that two employers may be "related" for the purposes of the ESA where they carry on "related business or activities".

viii. Penalties for Misclassifying Employees as "Independent Contractors"

When: November 27, 2017 – Employers may be subject to fines or penalties if they are found to have misclassified an employee as an independent contractor and will bear the burden of proving the worker is not an employee.

ix. Increased Parental Leave

When: December 3, 2017 – 61 weeks where pregnancy leave taken, 63 weeks where no pregnancy leave.

x. Increased Pregnancy Leave for Stillbirth or Miscarriage

When: January 1, 2018 – Increase from 6 to 12 weeks.

xi. New Domestic Violence/Sexual Assault Leave

When: January 1, 2018 – Up to 10 days and 15 weeks of job-protected leave each calendar year where the employee meets the qualifying provisions which relate to actual or threats of domestic violence or sexual assault against the employee or employee's child. The first 5 days of this leave will be paid.

xii. New Critical Illness Leave

When: December 3, 2017 – Replaces Critically Ill Child Care Leave. Up to 17 weeks job-protected leave to provide care and support to critically ill adult family member and up to 37 weeks leave to provide care and support for a child under 18 for employees employed for at least 6 months.

xiii. New Child Death Leave and Crime – Related Child Disappearance Leave

When: January 1, 2018 – New separate leaves that replace the current Crime-Related Child Death or Disappearance Leave. Up to 104 weeks of unpaid, job-protected leave where an employee's child dies or for a crime-related child disappearance for all employees employed for at least 6 months.

xiv. Increased Family Medical Leave Entitlement

When: January 1, 2018 – Up to 28 weeks unpaid, job-protected leave in a 52 week period to provide care or support to a family member with serious medical condition creating significant risk of death within 26 weeks.

Labour Relations Act (LRA)

When: January 1, 2018 for all LRA Amendments. We note previous versions of Bill 148 proposed effective dates six months from date of Royal Assent.

i. Mandatory Remedial Certification – Removal of the Labour Board's discretion to certify under s.11 of the LRA where it is satisfied that because of an employer's actions the true wishes of employees won't be reflected in a representative vote or the union was not able to obtain membership cards from at least 40 percent of the proposed bargaining unit.

ii. Mediation / Arbitration for First Contract Negotiations – Where the Labour Board grants mediation / arbitration for first collective agreement negotiations the parties are prohibited from commencing or continuing a strike or lock-out and any concurrent displacement or decertification applications are dismissed.

iii. Consolidation of Bargaining Units – Upon certification, the employer or union can request a new bargaining unit be consolidated with an existing unit represented by the same union.

iv. Expanded Card-Based Certification – Now applies in the temporary help agency industry, home care and community services industry, and building services sector and allows unions to certify without a vote with demonstrated support of more than 55% of the proposed bargaining unit.

v. Union Access to Employee Lists – Where a union can demonstrate at least 20% membership support for the proposed bargaining unit, it can request access to a list of employees that includes each employee's name, telephone number and personal email address if the employer has this information and potentially other personal information where the Labour Board deems it appropriate with the exception of home address information.

vi. Expanded Successor Rights for Building Services Contracts – A change in building service providers is deemed a "sale of business" thereby binding successor building provider to existing collective agreements and outstanding obligations incurred but not satisfied by former service provider.

vi. Expanded "Just Cause Protection" – Employers will now be required to prove "just cause" for any discipline or dismissals of bargaining unit employees between the time of certification and the later of when the parties reach a collective agreement or the union no longer represents the employees in the bargaining unit. "Just cause" protection will also apply for any discipline or dismissal following the commencement of a lawful strike or lockout.

vii. Expanded Interim Relief – The Labour Board will have more far reaching authority to issue interim decisions and put conditions on any interim decision or order without having to provide reasons.

vii. Return to Work Protection Post-Strike – Regardless of how long an employee has been out of the workplace during a strike, they will have a right to be returned to work at the end of the strike or lockout.

Occupational Health and Safety Act

i. Mandatory Heels in the Workplace Prohibited – Elevated heels can no longer be required unless they are required for safety and accept in the entertainment and / or advertising industries.

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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