Canada: What's Old Is New Again: Bill 47 Passes Into Law

On Nov. 21, 2018, the Ontario government passed Bill 47, Making Ontario Open for Business Act, 2018 ("Bill 47"). This Bill was the Conservative government's response to major legislative reforms by the predecessor Liberal government affecting Ontario's workplaces. Bill 148, Fair Workplaces, Better Jobs Act, 2017 ("Bill 148") was tabled in June of 2017, and brought considerable amendments to the Employment Standards Act, 2000 ("ESA") and the Labour Relations Act ("LRA").

After Bill 148 was passed in late November 2017, many employers scrambled to ensure that their procedures complied with the changes, most of which came into force on January 1, 2018. However, with a change in government came a change in policy and, as we previously discussed, Bill 47 sought to Roll Back the Clock on Labour Reforms in Ontario. Many changes introduced by Bill 148 were either modified or repealed through Bill 47.

Keynote changes that Bill 47 brought to the ESA and LSA are detailed in the table below. Of particular note is the elimination of Personal Emergency Leaves which are replaced with a three-day unpaid Sick Leave, a three-day unpaid Family Responsibility Leave, and a two-day unpaid Bereavement Leave. Minimum wage will be now be frozen at $14.00/hour until annual inflationary adjustments commence on October 1, 2020. Provisions for equal pay for equal work on the basis of employment status (part-time, casual, and temporary) or assignment employee status (those assigned through temporary help agencies) have also been repealed.

The only major change introduced to Bill 47 between the date it was tabled and the date it was passed into law relates to the LRA. Bill 148 granted the power to the Ontario Labour Relations Board to review bargaining unit structures, in certain circumstances. Originally, Bill 47 contemplated broadening the scope of this power; however, this provision has now been repealed altogether.

There were no substantive changes brought to the ESA provisions in Bill 47 between the date it was tabled and the date it was passed into law.

Many of the new changes under Bill 47 will take effect on January 1, 2019.

Employers operating in a non-unionized environment who have implemented the entitlements of Bill 148 may face challenges in rolling these back. There is a risk of constructive dismal claims to employers who change the implied terms or entitlements of the employment relationship with an employee. Therefore, employers should be cautious and seek legal advice before reducing an employee's pay or benefits.

For those employers who operate in a unionized environment, the same caution should apply. If the language of a collective agreement was modified to comply with Bill 148, there may be limited options until the parties bargain a new agreement, which may present challenges at that point in time.

Changes to the Employment Standards Act, 2000

ESA Provisions Bill 148 Changes Bill 47 Changes
Minimum Wage $14/hour (Jan. 1, 2018) $15/hour (Jan. 1, 2019) Freezing the minimum wage at $14 as of January 1, 2019; 33-month pause in minimum wage increases with annual increases, tied to inflation, to restart in 2020.
Scheduling and On Call (To be in effect as of January 1, 2019) Right to request changes to schedule or work location after an employee has been employed for at least three months. Right to refuse requests or demands to work or to be on-call on a day that an employee is not scheduled to work or to be on-call with less than 96 hours' notice. Requirement to pay employees a minimum of 3 hours' pay in the event of cancellation of a scheduled shift or an on-call shift within 48 hours before the shift was to begin. Requirement to pay employees a minimum of 3 hours' pay for being on call even if they are not called to work. Repealed, including the new record keeping requirements associated with these provisions. The former 3-hour "show up pay" rule will still apply.
Independent Contractors Reverse onus on the employer as to the classification of employees. Repealed in its entirety.
Equal Pay for Equal Work (Part XII of the ESA) Equal pay for equal work on the basis of employment status (part-time, casual, and temporary) and assignment employee status (temporary help agency status). Employees may request a review of their rate of pay requiring either an adjustment of the rate of pay or a written response setting out the reasons the employer disagrees with the employee. Repealing equal pay for equal work on the basis of employment status (part-time, casual, and temporary) and assignment employee status (temporary help agency status). Maintaining the requirement for equal pay on the basis of sex.
Personal Emergency Leave Employees are entitled to 10 job protected days off from work (of which 2 are paid) to deal with: a) personal illness, injury or medical emergency; b) death, illness, injury or medical emergency of a prescribed individual; c) urgent matter that concerns a prescribed individual. Repealed in its entirety - no more Personal Emergency Leave. Replaced with: Sick Leave: employees with 2 consecutive weeks of employment may take up to 3 unpaid days of leave annually to deal with personal illness, injury or medical emergency.

Family Responsibility Leave: employees with 2 consecutive weeks of employment may take up to 3 unpaid days of leave annually to deal with illness, injury, medical emergency, or urgent matter relating to a prescribed individual.

Bereavement Leave: employees with 2 consecutive weeks of employment may take up to 2 unpaid days of leave annually to deal with death of a prescribed individual. For each of these types of leave, an employer will be permitted to request reasonable evidence from the employee to support the requested leave. Also, Bill 47 is clear that where the employee has a paid or unpaid leave entitlement under their employment contract, such leave taken under the contract will also count for statutory purposes.
Public Holiday Pay Bill 148 changed the prior calculation of public holiday pay from January 1, 2018 up to July 1, 2018. It was restored to the pre-Bill 148 calculation as of July 1, 2018 being: 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. Bill 47 confirms that the old calculation (the pre-Bill 148 calculation), restored as of July 1, 2018, is the lawful calculation for Ontario.
Sheltered Workshops Exclusion from the ESA of individuals who perform work in a simulated job or working environment if the primary purpose is the individual's rehabilitation. (this provision was to be repealed on January 1, 2019). Repealed.
Penalties for Contravention *1 Maximum administrative penalties for contraventions of the ESA $350/$700/$1500. Reverting to previous administrative penalties for contraventions of the ESA by decreasing the maximum penalties to $250/$500/$1000.

[1] Note that while Bill 47 does not specifically revoke or amend regulation 289/01: Penalties And Reciprocal Enforcement, this information is provided in the note released by the Ministry of Labour addressing highlights of Bill 47 which leads us to believe that there may be a regulation in the works which will replace the existing one.

Changes to the Labour Relations Act

LRA Provisions Bill 148 Changes Bill 47 Changes
Application for employee lists Permits a trade union to obtain a list of the employees of an employer and certain related information. Repealed.
Review of Structure of Bargaining Units Allowed the OLRB to review the structure of bargaining units in certain circumstances and make orders in respect of the structure of bargaining units. Repealed.
Card-based Certification Provides for an alternate trade union certification process in the building services industry, the home care and community services industry and the temporary help agency industry. Repealed.
Remedial Certification The OLRB was empowered to certify the trade union as the bargaining agent of the employees in the bargaining unit if it determined it could be appropriate for collective bargaining. Repealed Requiring the OLRB to determine whether a vote or new vote would be a sufficient remedy, or whether the only sufficient remedy would be to certify the union.
Successor Rights Application of successor employer rights to other types of service providers that directly or indirectly receive public funds. Repealed.
Return-to-work Rights Reinstatement of employee at conclusion of strike/lock-out. Reinstatement of an employee if an application is made within six months following commencement of a lawful strike, subject to conditions.
First Collective Agreement Mediation and Mediation-Arbitration Provided for first collective agreement mediation and mediation-arbitration and provision for educational support. Repealed; Replaced with pre-Bill 148 conditions for access to first agreement arbitration (where it appears to the OLRB that collective bargaining has been unsuccessful for specified reasons).
Collective Agreement to be Filed No change from the previous Act – duty to file copy of the collective agreement with the Ministry of labour. New provision creating an obligation on the Ministry of labour to make collective agreements public, on the Government of Ontario website.
Regulation-Making Powers The Lieutenant Governor in Council was empowered to make regulations requiring prescribing classes of employees, or defining or clarifying industries, in respect of which card-based certification is available. Repealed; Replaced with a provision that the Lieutenant Governor in Council is empowered to make regulations requiring the filing with the Ministry of labour of information for the appointment of a conciliation officer.
Fines Increased maximum fines for offences under the LRA to $5,000 for individuals and $100,000 for organizations. Returning to the previous maximum fines for offences under the LRA by decreasing the fines to $2,000 for individuals and $25,000 for organizations.

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