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On October 23, 2018, the Ontario government formally announced its intention to make significant changes to employment and labour legislation in Ontario.
On October 23, 2018, the Ontario government formally announced
its intention to make significant changes to employment and labour
legislation in Ontario. In large part, these proposed changes will
reverse or amend the legislation that the government previously
passed through Bill 148, the Fair Workplaces, Better Jobs Act,
2017. Some of the Bill 148 changes have already been phased in
during 2018, such as the 10 days of "personal emergency
leave" (two of which were paid) and the increase in minimum
wage to $14 per hour, while others were to have taken effect in
2019, such as the new scheduling requirements.
In the press release issued alongside the
announcement, the government states that the purpose of the new
legislation is to reduce regulatory burdens on employers by
repealing many aspects of Bill 148. This will involve changes to
the Employment Standards Act, 2000 and the Labour
Relations Act, 1995. In addition, the government has proposed
changing the skilled trades and apprenticeship model in Ontario,
which will likely have a significant impact on the construction
industry.
Yesterday afternoon, the government introduced Bill 47, the
Making Ontario Open for Business Act. A copy of the bill
has now been posted online and can be viewed at this link. At this time, Bill 47 is only at the
First Reading stage, and is therefore subject to change as it goes
through the legislative process. However, it is likely that the
final version of Bill 47 will be substantially similar to what is
currently being proposed. If and when Bill 47 is passed, the
intention is for the changes to take effect on January 1, 2019.
In the chart below we summarize how Bill 47 will impact the
changes previously made to the Employment Standards Act,
2000 through Bill 148. While the changes are extensive, some
aspects of Bill 148 are being maintained, including the $14 minimum
wage, the increase to 3 weeks of vacation after 5 years, and the
majority of the new and expanded statutory leaves of absence
(including Domestic of Sexual Violence Leave).
We will continue to keep you updated regarding the status of
Bill 47 as information becomes available.
REPEALED AND REPLACED
Repealed Bill 148 provision
New Bill 47 provision (First Reading)
Minimum wage of $15 per hour
General minimum wage increases to $15.00 per hour (from
rate of $14.00 per hour in place as of January 1, 2018)
Special minimum wages for students ($14.10), liquor servers
($13.05) and homeworkers ($16.50) also increase
Beginning on October 1, 2020, the $14 per hour minimum wage
will be subject to an annual inflation adjustment on October 1 of
every year
Sick leave, family responsibility leave and bereavement
leave
replaces
Expanded Personal Emergency Leave (PEL)
All employers must provide 10 days of PEL per calendar
year, the first two of which must bepaid
Employers cannot require employee to provide medical note
as a condition of receiving PEL
All employees will be entitled to the following leaves in each
calendar year, all of which are unpaid:
up to 3 days of unpaid "sick leave" (personal
illness, injury or medical emergency)
up to 3 days of unpaid "family responsibility leave"
(illness, injury, medical emergency or "urgent matter"
relating to certain family members)
up to 2 days of unpaid "bereavement leave" (death of
certain family members)
Certain restrictions apply (e.g. must have been employed for at
least 2 weeks, leave to be taken in entire days, no duplication if
employment contract already provides for similar paid or unpaid
leave)
Employer may require reasonable evidence that employee is
entitled to leave, with no express restriction on requesting
medical note
AMENDMENTS
Current Bill 148 provision
New Bill 47 amendment (First Reading)
Classification as contractor
Employers are prohibited from treating person who is an
employee as if not an employee (i.e. as a contractor)
Onus of proof that person is not an employee is on
employer
Prosecution and monetary penalties under ESA for
misclassification
The prohibition on treating employees as contractors
remains
The "reverse onus" in s. 5.1(2) is repealed
Holiday pay
Holiday pay calculation will be based on number of days
actually worked
Employees that work on the public holiday and receive a
substitute day off must also be provided with written notice of the
day of the substitute holiday
Previous prorated public holiday pay formula reinstated
(note: this change had already been implemented by regulation
as of July 1, 2018)
Equal pay for equal work - sex
Prohibition on basing differences in pay on sex remains the
same
Employees have new right to request a "review" of
their rate of pay and to receive a substantive written response
from their employer
The prohibition on basing differences in pay on sex remains the
same
The right of an employee to request a written
"review" and receive a substantive written response is
repealed
REPEALED ANDNOTREPLACED
Repealed Bill 148 provision
Currently in effect
New Bill 47 provision (First Reading)
Equal pay for equal work - employment
status
Employers cannot base differences in pay on employment
status (e.g. whether the employee is full-time / part-time / casual
/ temporary / seasonal)
Employees have new right to request a "review" of
their rate of pay and to receive a substantive written response
from their employer
Repealed - no remaining obligation or entitlement
Equal pay for equal work - assignment employee
status
Temporary help agencies cannot base differences in pay on
assignment employee status
Employees have new right to request a "review" of
their rate of pay and to receive a substantive written response
from their employer
Repealed - no remaining no obligation or entitlement
Repealed Bill 148 provision
Would have taken effect January 1, 2019
New Bill 47 provision (First Reading)
Changes to schedule or work location
Employees with at least three months of service may submit a
written request to change their schedule or work location. .
Repealed - no remaining obligation or entitlement
On-call employees - guaranteed three paid
hours
If "on call" employees are not called into work, or
are called in but work less than three hours despite being
available to work longer, then they must be paid three hours at
their regular pay rate
Repealed - no remaining obligation or entitlement
Right to refuse - 96 hour rule
An employee can refuse to work or to be on-call on a day that
they were not scheduled to work or be on-call if the employer does
not provide 96 hours' notice
Repealed - no remaining obligation or entitlement
Cancellation pay - guaranteed three paid
hours
If a scheduled shift or scheduled on-call assignment is
cancelled within 48 hours of the scheduled start time, employees
must be paid three hours at their regular pay rate
Repealed - no remaining obligation or entitlement
MAINTAINED
Bill 148 provision currently in effect that will not be
impacted by Bill 47 (First Reading)
Minimum wage of $14 per hour
General minimum wage increases to $14.00 per hour (from rate of
$11.60 per hour in place as of October 1, 2017)
Special minimum wages for students ($13.15), liquor servers
($12.20) and homeworkers ($15.40) also increase
Vacation with pay
Vacation time increases from 2 weeks to 3 weeks after 5 years
of service
Vacation pay increases from 4% of wages to 6% of wages after 5
years of service
Extended parental leave
Increases to 61 weeks (from 35 weeks) for employees who take
pregnancy leave
Increases to 63 weeks (from 37 weeks) otherwise
Extended pregnancy leave
Increases from 6 weeks to 12 weeks for employees who experience
a still-birth or miscarriage
Expanded critical illness leave
Up to 17 weeks to provide care and support to a critically ill
adult family member
In addition to existing critically ill child
care leave of up to 37 weeks
New Domestic or Sexual Violence Leave
Employees will be entitled to a leave of absence where the
employee or the employee's child experiences domestic or sexual
violence or the threat of domestic or sexual violence
The length of the leave can be up to 10 days (if taken as days)
or 15 weeks (if taken as full weeks)
The first five days of the leave must be
paid
Extended Family Medical Leave
Increases from 8 weeks to 28 weeks per 52 week period to
provide care or support to a family member who has a serious
medical condition with a significant risk of death within 26
weeks
Bill 148 provision that would have taken effect on
January 1, 2019 that will not be impacted by Bill 47 (First
Reading)
Three hour rule
Employees who regularly work more than three hours each day
must be paid three hours at their regular pay rate if they are
required to work and work for less than three hours despite being
available to work longer
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be ought
about your specific circumstances.
