Canada: Bill 47 Receives Royal Assent: Changes To The Employment Standards Act, 2000 And The Labour Relations Act, 1995

Last Updated: November 27 2018
Article by Samantha Cass

Most Read Contributor in Canada, November 2018

On November 21, 2018, Bill 47, the Making Ontario Open for Business Act, 2018, received royal assent. Bill 47 amends both the Employment Standards Act, 2000 (ESA) and the Labour Relations Act, 1995 (LRA). The full text of Bill 47 can be found here.

The changes to the ESA come into force on January 1, 2019. The changes to the LRA came into force on November 21, 2018.

A summary of the changes to each of these statutes is provided below.

Legislative history

Bill 47 repeals or amends many of the employer obligations introduced by the previous government under the Fair Workplaces, Better Jobs Act, 2017 (Bill 148).

Bill 47 was first introduced on October 23, 2018. We reported on the proposed changes to the ESA and LRA here and here. The Bill subsequently received a second reading and was referred to the Standing Committee on Finance and Economic Affairs. The Standing Committee made minor amendments to the Bill, which can be seen here. Bill 47 was then ordered for a third reading and received royal assent on November 21, 2018.

Summary of Changes – Employment Standards Act, 2000 – In force January 1, 2019

Subject Matter Current Entitlements under the Employment Standards Act, 2000 New Entitlements
(Bill 47, January 1, 2019)
Minimum Wage $14 minimum wage

$15 minimum wage on January 1, 2019

Minimum wage is frozen at $14 until October 1, 2020

Minimum wage will be subject to an annual inflation adjustment starting October 1, 2020

Scheduling Starting January 1, 2019, employees can request changes in their work schedule or location. Employers have to provide reasons for denial

Starting January 1, 2019, employees are entitled to three hours' pay if their shift is cancelled within 48 hours before it begins

Starting January 1, 2019, employees will have a right to refuse a change in schedule or on-call shift if the request is made fewer than 96 hours before the shift was scheduled to start

Starting January 1, 2019, employees are entitled to three hours' pay if they are on-call and not required to work, or if they work fewer than three hours

Employers must keep records of dates and times employees were scheduled to work or be on-call and any cancellations

All of the changes in respect of scheduling are repealed, except:

Employees who regularly work more than three hours a day and are required to present themselves for work, but who work fewer than three hours, will be entitled to a minimum of three hours' pay

There is an exception to this three hour minimum if the shift is shortened because of events beyond the employer's control (e.g. fire, power failure)

Personal Emergency Leave Ten days of leave due to personal illness, injury, or medical emergency for employees and/or certain family members

The first two days are paid

Employers are prohibited from requiring a doctor's note to substantiate these absences

Personal emergency leave is repealed and is  replaced with sick leave, family responsibility leave, and bereavement leave, each of which apply separately from each other

Employees are entitled to three sick leave days, three family responsibility leave days and two bereavement leave days

Each new category of leave is unpaid

Eligibility for these leaves begins after two consecutive weeks of employment with the employer

These leave days are deemed to be taken as entire days, regardless of whether or not the employee is off work for the entire day

Evidence reasonable in the circumstances can be requested by an employer, including a doctor's note

Sick leave: three unpaid days for personal illness, injury, or medical emergency

Family responsibility leave: three unpaid days for illness, injury, medical emergency, or urgent matters relating to a parent, grandparent, child, spouse, sibling, or dependent relative of the employee

Bereavement leave: two unpaid days for the death of a parent, grandparent, child, spouse, sibling or dependent relative

Leaves, Generally Two new categories of leave:

  • Domestic and sexual violence leave (up to 10 individual days and up to 15 weeks, with the first five days paid); and
  • Death of a child or crime-related disappearance leave (up to 104 weeks)

Increased entitlements for parental leave (61 weeks if the employee took a pregnancy leave and 63 weeks if the employee did not take a pregnancy leave); family medical leave (28 weeks in a 52 week period); critical illness care leave (37 weeks in a 52 week period for a child, 17 weeks in a 52 week period for an adult)

New leaves and increased entitlements remain the same, however, if an employee takes a paid or unpaid leave under an employment contract in circumstances for which he or she would also be entitled to take sick leave, family responsibility leave, or bereavement leave, then the employee is deemed to have taken the statutory leave
Employee Classification Employers face a reverse onus to prove that a worker is not an employee if an employee's status is in question Repeals the reverse onus provision

Employers must still classify employees correctly

Public Holiday Pay and Vacation Time/Pay Public holiday pay is calculated as all regular wages earned by the employee in the pay period immediately preceding the public holiday, divided by the number of days the employee worked in that pay period

Three weeks' vacation time/pay for employees with five or more years of service

Two weeks' vacation time/pay for employees with less than five years' service

Public holiday pay is calculated as the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20

The entitlements to vacation time and pay remain the same

Equal Pay for Equal Work Equal pay for equal work for those who perform substantially the same (but not necessarily identical) jobs for the same employer

Equal pay for equal work on the basis of employment status (part-time, full-time, seasonal, casual) and for temporary help agency employees

Equal pay for equal work is maintained for those who perform substantially the same (but not necessarily identical) jobs for the same employer

Equal pay on the basis of employment status and for temporary help agency employees is repealed

Penalties for Contravention $350/$700/$1500 for first/second/third administrative contravention Penalties are reduced to $250/$500/$1000 for first/second/third administrative contravention
Wage Review Employees can request a review of their wages and the employer must respond with a pay adjustment or a written explanation for why the request is denied Repealed
Scope of the Act The ESA currently exempts an individual who performs work in a simulated job or working environment if the primary purpose in placing the individual in the job or environment is his or her rehabilitation Repeals this exemption. Those who perform work in a simulated job or working environment (for the primary purpose of his or her rehabilitation) are covered by the ESA

Note: this change comes into force on a day to be named by proclamation of the Lieutenant Governor

Summary of Changes – Labour Relations Act, 1995 – In force November 21, 2018

Subject Matter Current Entitlements under the Labour Relations Act, 1995 New Entitlements
(Bill 47, in force November 21, 2018)
Union Certification Card-based certification for home care and community services industries, building services industry, and temporary help agency industry Card-based certification in each of these industries is repealed – regular certification rules apply
Remedial Certification Where an employer's contravention of the LRA results in (a) the true wishes of employees in the bargaining unit not being reflected in the representation vote, or (b) the union being unable to obtain membership cards from at least 40% of the proposed bargaining unit, the OLRB must certify the unit This power is repealed. The original pre-conditions for the OLRB to certify a union as a remedy for employer misconduct are reinstated: remedial certification is only available if no other remedy would be sufficient to counter the effects of the employer's contravention

First Collective Agreement Mediation In addition to arbitration, first collective agreement mediation is available. Where mediation is unsuccessful, mediation-arbitration is available First collective agreement mediation and mediation-arbitration are repealed

First collective agreement arbitration in accordance with the pre-Bill 148 legislation is restored

Employee Lists On application, where a union can establish at least 20% support of the employees involved, it will be granted access to a list of employees and certain contact information Trade unions can no longer obtain a list of employees or their contact information from an employer

A trade union must destroy any employee contact list obtained under the previous version of the LRA

Educational Support Parties can request educational support in the practice of labour relations and collective bargaining Repealed
Review of Bargaining Unit Structure An employer or union can apply to the OLRB to review the structure of a bargaining unit after certification (but prior to entering into a collective agreement) Repealed
Strike or Lock-out Timelines Where there is no collective agreement in force, no strike or lock-out is permitted until seven days after the conciliation report has been released, or 14 days after the release of a notice that the Minister will not appoint a conciliation board The timelines are lengthened: no strike or lock-out is permitted until nine days after the release of the conciliation report, or 16 days after the release of a notice not to appoint a conciliation board
Reinstatement of Employees after Strike No time limit on the employer's obligation to reinstate an employee at the end of a legal strike or lockout The pre-Bill 148 legislation is restored: an employer must reinstate an employee where an application is made within six months following the commencement of a lawful strike
Notices and Communication Notices and communications have to be by mail For any proceeding under the LRA, any notice or communication may be sent by mail, courier, fax, or email
Penalties and Fines The maximum penalties for a conviction for an offence are $5,000 for individuals and $100,000 for organizations The penalties are decreased to $2,000 for individuals and $25,000 for organizations, which restores the pre-Bill 148 amounts

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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