Bills 148 and 47 – Whiplash for Ontario’s Employment and Labour Laws
What does this mean for your organization?
Are you in compliance? Are you “over-compliant”?
On November 22, 2017, the Ontario government passed the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”), which received Royal Assent on November 27, 2017.
Bill 148 has introduced a range of significant changes to the Employment Standards Act, 2000 (“ESA”) and the Labour Relations Act, 1995 (“LRA”).
Adding to the confusion of Ontario employers, many of the Bill 148 amendments were reversed or modified in late 2018, by the newly elected Ontario Conservative government. Those reversals and modifications are found in the Making Ontario Open for Business Act, 2018 (“Bill 47”).
A summary of the legislative changes through Bills 148 and 47 are summarized below.
If you have any questions or would like further details – or if there is anything else we can do to assist in relation to the Company’s Bill 148 and Bill 47 compliance, please do not hesitate to contact us.
• Minimum Wage – effective January 1, 2018
Bill 148 increased the general minimum wage to $14.00 per hour, effective as of January 1, 2018. A further planned increase to $15.00 per hour, which was set to take place January 1, 2019, was reversed by Bill 47.
As per Bill 148, any further annual increases to the minimum wage shall continue to be implemented as per the traditional mechanism prescribed by the ESA, i.e. based on changes in the Consumer Price Index.
There is no elimination of any of the special industry-specific minimum wage rates; and they were subject to the same percentage increase that has applied to the general minimum wage as per Bill 148.
• Vacation – effective January 1, 2018
An employee’s minimum entitlement to two (2) weeks’ vacation per year will now increase to three (3) weeks per year (together with 6% vacation pay) once the employee has completed five (5) years of service with his/her employer. Bill 148 has made a range of complementary changes to the ESA in order to give effect to this new entitlement.
• Public Holiday Pay – effective December 3, 2017; repealed November 21, 2018
Bill 148 had introduced a new, markedly different formula for the calculation of “public holiday pay”, which was designed to better ensure that the calculation reflected an employee’s regular wages that would have been earned but-for the holiday. Bill 47 reverted the Public Holiday Pay calculation back to the original formula – a much more straightforward and favourable calculation for employers.
• Equal Pay for Equal Work – effective April 1, 2018; repealed November 21, 2018
Bill 148 had prohibited employers from paying employees at different rates because of a “difference in employment status.” This protection extended to temporary, seasonal, casual, part-time and temporary help agency employees. These provisions were repealed by Bill 47 on November 21, 2018.
• Personal Emergency Leave – effective January 1, 2018; repealed November 21, 2018
Bill 148 had granted 10 personal emergency leave days per year to all employees. Employers were required to pay for the first two days taken in a given year. Employers were not allowed to request a doctor’s note to substantiate any such absences.
Bill 47 removed Personal Emergency Leave from the ESA entirely; replacing it with three different kinds of leave: three unpaid sick leave days, three unpaid family responsibility leave days, and two unpaid bereavement leave days.
Each leave has separate criteria for use and employers may ask for proof of entitlement to leave (e.g., doctor’s note for sick leave).
Employees must have been employed with an employer for two weeks to be entitled to these leaves.
NOTE: Understandably, new labour and employment legislation causes a lot of confusion. Lately, we have been approached by many clients with the following issue:
We already provide our employees with paid personal leave based on the earlier legislation. Do we have to continue paying our employees for these days?
THE ANSWER IS NO. Call us today, to discuss!
• Other Leaves of Absence – effective January 1, 2018
Child death leave and crime-related child disappearance leave: Any employee with at least six (6) consecutive months of service with an employer, and whose child dies from any cause, is entitled to a job-protected child death leave for a period of up to 104 weeks.
This leave is distinct from the crime-related child disappearance leave, which has been increased to 104 weeks.
Family medical leave: Entitlement to family medical leave will increase from eight (8) weeks in a 26-week period to 28 weeks in a 52-week period.
Domestic/sexual violence leave: An employee who has been employed for at least 13 weeks will be entitled to a domestic/sexual violence leave of up to ten (10) individual days of leave, and up to 15 weeks of leave if the employee or his/her child experiences domestic or sexual violence (or the threat of such violence). The first five (5) days of this leave in any particular year must be paid; and the balance will be unpaid.
• Scheduling – effective January 1, 2019
Bill 148 created the “3-hour reporting rule”, which requires employers who cut an employee’s shift short to pay that employee a minimum of 3 hours at the normal wage rate.
Bill 148 imposed other scheduling rules which would have taken effect on January 1, 2019, but those amendments were repealed by Bill 47 on November 21, 2018.
• Characterization of Employee vs. Contractor – effective December 3, 2017
Consistent with common law principles, it is now an offense under the ESA for an employer to treat an employee as if that person were not an employee (e.g. by characterizing an employee as an independent contractor).
Bill 148 had placed the burden of proving that the person is not an employee on the employer, but Bill 47 reversed this amendment effective November 21, 2018.
• Application of the ESA – effective December 3, 2017
Bill 148 also eliminates most of the exclusions that apply to Crown employees, and makes the ESA applicable to trainees.
However, individuals working through an experiential learning program run through a university, college (including a registered private career college) or high school continue to be excluded from the application of the ESA.
• Penalties for Employers – effective December 3, 2017
In the event of a violation of the ESA, the Ministry of Labour may now publicize (including via the internet) the name of the employer and its contravention.
• Enhanced “just cause” protection – effective January 1, 2018
In the event that an employer discharges or disciplines a worker following the commencement of a lawful strike or lockout, or following a certification (but before a collective agreement is entered into), the employer will now be required to prove “just cause.”
• Remedial Powers of OLRB – effective January 1, 2018
The power of the OLRB to make interim orders has been expanded to provide a broad power to make interim decisions and orders in any proceedings.
Also, maximum fines for contravention of the LRA have been increased to C$5,000 for individuals and to C$100,000 for organizations.
• Collective Agreements public – effective November 21, 2018
Bill 47 requires that each party to a collective agreement file a copy with the Ministry of Labour, and that all of those collective agreements be published to the Government of Ontario website.
• Certification – effective January 1, 2018
The Ontario Labour Relations Board may now conduct votes outside the workplace, as well as electronically and by telephone.
• New methods of communication – effective November 21, 2018
Bill 47 amended the labour relations act to account for new forms of communication, such as e-mail.
• Certification – effective January 1, 2018; repealed November 21, 2018.
Bill 148 had permitted card-based certification in the building services, home care and community services, and temporary help agency industries. In other words, unions had been able to certify workplaces in those sectors by providing documentary proof that at least 55% of workers employed in the proposed bargaining unit support the union. A vote was required if the union could provide proof of at least 40% support, but less than 55%. Bill 47 repealed that amendment effective November 21, 2018.
Bill 148 had required that a union be automatically certified to remedy for employer interference with a union organizing effort. Since Bill 47 passed on November 21, 2018, that remedy is only discretionary.
• Access to Worker Information – effective January 1, 2018; repealed November 21, 2018.
Unions with the support of at least 20% of workers in a proposed bargaining unit had the right to apply to the Ontario Labour Relations Board for access (via the employer) to a complete list of the employees in the proposed bargaining unit, along with those employees’ phone numbers and personal email addresses. That right was removed by Bill 47, effective November 21, 2018.
• Consolidation after Certification – effective January 1, 2018; repealed November 21, 2018.
Bill 148 had vested the Ontario Labour Relations Board with the power to, among other things, consolidate a newly certified bargaining unit with an existing bargaining unit of other employees of the same employer represented by the same union. This provision was repealed by Bill 47.
• Successor Rights – effective January 1, 2018; repealed November 21, 2018.
Bill 148 had expanded the “successor rights” provisions of the LRA to include changes in building services providers. Bill 47 repealed this successor rights provision effective November 21, 2018.
• Return to work – effective January 1, 2018; repealed November 21, 2018.
The six (6) month time limit for an employee to be reinstated following a legal strike or lock-out had been removed by Bill 148. Rather, an employer was required to return the worker to work, regardless of how long the worker had been out and workers had the right to challenge any refusal of reinstatement following the strike or lockout. The 6-month time limit for reinstatement was reintroduced with the passing of Bill 47 on November 21, 2018, as were various other protections for striking and locked-out employees.