Canada: New Legislation To Restore Old Laws: Bill 47 Receives Royal Assent

This week, the Making Ontario Open for Business Act, 2018 (Bill 47) received Royal Assent and passed into law. The vast majority of changes under Bill 47 are targeted at repealing prior amendments made under the Fair Workplaces, Better Jobs Act, 2017 (Bill 148). Notable amendments, which are either already in force, or will come into force on January 1, 2019, will affect both unionized and non-unionized workforces.

Key Changes to the ESA

Key changes affecting the Employment Standards Act, 2000 (the "ESA") that will come into force on January 1, 2019 include:

  • Minimum Wage. The minimum wage will remain frozen at $14 per hour until October 1, 2020. Thereafter, minimum wage increases will be tied to the Consumer Price Index.
  • Employee Misclassification: Employers continue to be barred from treating their employees as if they are not employees (i.e. as independent contractors, instead). However, Bill 47 removes the burden of proof on employers to show that an individual who is the subject of employment standards investigation or inspection is not an employee.
  • Public Holiday Pay: Bill 47 confirms that the current public holiday pay rules, which were under review and in effect until December 31, 2018, will remain in place after January 1, 2019. Public holiday pay will continue to be calculated as equal to the total amount of regular wages earned and vacation pay payable to an employee in the four work weeks prior to the work week in which the public holiday occurred, divided by 20.
  • Personal Emergency Leave Repealed. The two paid days and eight unpaid days of leave due to illness, injury, death and certain emergencies and urgent matters provided for under Bill 148 are repealed. The repeal includes the removal of the prohibition from requiring a doctor's note to substantiate Personal Emergency Leave. Personal Emergency Leave is replaced by three new statutory leaves, detailed below.
  • Sick Leave, Bereavement Leave and Family Responsibility Leave. Employees with at least two weeks of service with their employer will be entitled to three unpaid sick days (for personal illness, injury or medical emergency), three unpaid days off for family responsibilities (for illness, injury, medical emergency or urgent matter that concerns a prescribed family member) and two unpaid bereavement days (for the death of a prescribed family member). If an employee is entitled to a leave of absence under his or her employment contract that would also entitle him or her to Sick Leave, Bereavement Leave or Family Responsibility Leave, any leave taken under the employment contract will be deemed to have been taken under these new sections.
  • Scheduling Changes. The section of Bill 148 permitting an employee to request changes in his or her work schedule or location that was scheduled to come into force on January 1, 2019 is repealed.
  • Minimum Three Hours' Pay. If an employee who regularly works more than three hours is required to attend at work, but works less than three hours, he or she will be entitled to a minimum of three hours' pay. This requirement was already scheduled to come into force on January 1, 2019 under Bill 148.
  • Minimum Pay for Being On Call. The requirement to pay an employee a minimum of three hours' pay if he or she was required to be on call, but did not work or worked less than three hours, that was scheduled to come into force on January 1, 2019 is repealed.
  • Equal Pay for Equal Work. The prohibition of unequal pay on the basis of employment status (i.e. casual, part-time, temporary and seasonal status versus full-time status) or assignment employee status is repealed. The requirement for employers to respond to their employees' requests for a review of their wages under the Equal Pay for Equal Work provisions by either (i) adjusting the employees' pay; or (ii) providing a written response explaining the discrepancy, is also repealed. Unequal pay on the basis of sex continues to be prohibited; however, as above, an employee's right to request a review of his or her rate of pay from the employer in these circumstances has been removed.

Key Changes to the LRA

Key changes affecting the Labour Relations Act, 1995, which came into force November 21, 2018, include:

  • List of Employees. During the organizing process, trade unions will no longer be allowed to require an employer to provide an employee list by demonstrating they have at least 20% support in their proposed bargaining unit.
  • Non-Discretionary Remedial Certification Repealed. Where an employer is found to have committed an unfair labour practice such that the wishes of their employees were likely not reflected in a representation vote, the Ontario Labour Relations Board (the "Board") will now be able choose whether to order additional representation votes or certify the trade union, rather than proceeding to automatic certification.
  • Review of Structure of Bargaining Units.  The powers of the Board to review the structure of and consolidate bargaining units have been repealed.
  • Card-Based Certification for Certain Industries. The card-based trade union certification process (which did not require a representation vote) made available to the building services industry, the home care and community services industry and the temporary help agency industry by Bill 148, is repealed
  • Educational Support. Parties will no longer be able to request, and the Minister of Labour (the "Minister") will not have to make available, educational support services when notice of a desire to bargain is given by a trade union.
  • First Collective Agreement Arbitration. There will no longer be an avenue to apply for first collective agreement mediation or mediation-arbitration as of right. Rather, the Board now has the power to order first collective arbitration in limited circumstances where the collective bargaining process has been unsuccessful.
  • Successor Employer Rights. The Bill 148 successor rights provisions affecting building service providers (including building cleaning services, food services and security services) will remain in effect. Specifically, a sale of a business, resulting in a transfer of bargaining rights, will still be deemed to have occurred where an employer providing building services ceases to provide those services and substantially similar services are provided at the same premises under the direction of another employer. However, the Government will no longer be able to enact regulations extending these successor rights provisions to service providers that directly or indirectly receive public funds.
  • Strike or Lock-Out Timelines. Where there is no collective agreement, the amount of time required before a strike or lock-out may occur after the Minister has appointed a conciliation officer or a mediator has been extended from (i) seven to nine days after the Minister releases the report of a conciliation board or mediator; and (ii) fourteen to sixteen days after the Minister notifies the parties that he or she does not consider it advisable to appoint a conciliation board.
  • Reinstatements. The Bill 148 right to apply for reinstatement at any time after the commencement of a lawful strike or lock-out has been removed. Employees must now apply for reinstatement within six months of the start of a lawful strike or lock-out.
  • Copies of Collective Agreements. Copies of collective agreements that have been filed with the Minister must now be made available to the public (e.g. by publishing them on a Government of Ontario website).
  • Fines Lowered. The maximum amount of a fine upon conviction for an offence is lowered from $5,000 to $2,000 for individuals and from $100,000 to $25,000 for corporations.

Pay Transparency

The notable changes detailed above are not the only changes that may occur on January 1, 2019. In addition to the amendments to the ESA and LRA, another piece of legislation, An Act to enact, amend and repeal various statutes (Bill 57), passed its first reading at the Legislative Assembly of Ontario on November 15, 2018. If Bill 57 passes into law, the Pay Transparency Act, 2018 will no longer come into force on January 1, 2019.

As a refresher, two new obligations that will impact employers under the Pay Transparency Act, 2018 are (i) prohibiting employers from asking job candidates about their compensation history; and (ii) requiring any publicly posted jobs opportunities to include a compensation rate or range. Under Bill 57, the new date of commencement will be postponed until a day named by a proclamation of the Lieutenant Governor. We will continue to provide updates on the status of the Pay Transparency Act on this blog.

Action

Now that Bill 47 has received Royal Assent, employers will no longer be in a state of limbo when considering whether to implement changes or amend policies and practices. Employers should review their policies, procedures, handbooks and payroll practices to ensure that they are consistent with the new Bill 47 framework. Employers in unionized environments should also be mindful of the LRA changes as going forward, these may impact labour relations strategies during both the union organization and collective bargaining phases.

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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