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repealed, except: Employees who regularly work more than three hours a day and are required to present themselves for work, but who work fewer than three hours, will be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:
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.
