Changes To Workplace Law

Bill 148 – Changes to Ontario’s Employment and Labour Laws

What does this mean for your organization?

Are you in compliance?

On November 22, 2017, the Ontario government passed the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”); and the Bill 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”), which 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 compliance, please don’t hesitate to contact us.

ESA Amendments

• Minimum Wage – effective January 1, 2018

Bill 148 has increased the general minimum wage to $14.00 per hour, effective as of January 1, 2018.

A further increase to $15.00 per hour will become effective as of January 1, 2019.

There is no elimination of any of the special industry-specific minimum wage rates; and they are subject to the same percentage increase that has applied (and will apply ) to the general minimum wage as per Bill 148.

Once the minimum wage rate reaches $15.00 per hour, further annual increases will continue as per the traditional mechanism prescribed by the ESA, i.e. based on changes in the Consumer Price Index.

• Equal Pay for Equal Work – effective April 1, 2018

Bill 148 will prohibit employers from paying an employee in a particular role at a rate of pay less than the rate paid to another employee in the same role because of a “difference in employment status.” This protection extends to temporary, seasonal, casual, part-time and temporary help agency employees. In other words, all workers employed by the Company in position XYZ (i.e. whether on a full-time, part-time, casual or other basis) will be presumed entitled to be entitled to wage parity.

That said, there will be exceptions for differences in rate of pay based on factors other than employment status (e.g. such as seniority, merit, and quantity or quality of production).

Furthermore, employees will have the right to request a review of their wages to address any differentials; and employers will be required to respond by either (a) increasing the wage rate to eliminate the differential, or (b) providing a written explanation for the differential. Bill 148 provides that any employee who requests such a review shall be protected from reprisal for having done so.

• Vacation and Public Holiday Pay – 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.

Important changes to the public holiday provisions of the ESA include the following:

• A new formula for the calculation of “public holiday pay”, which is designed to better ensure that the calculation reflects an employee’s regular wages that would have been earned but-for the holiday.

•The new calculation is based on dividing the wages earned by the employee in the pay period immediately preceding the public holiday by the number of days actually worked during that pay period to earn those wages.

•This is markedly different from the previous formula, which effectively prorated holiday pay for employees who work less than 5 days per week. By way of example:

• Under the new rule, an employee who works 3 days per week, 8 hours per day, will be entitled to 8 hours’ pay for the holiday;

• Whereas under the previous rule, the employee would only be entitled to 4.8 hours’ pay for the holiday.

• In circumstances where an employee works on any public holiday, his or her payment for that day will be public holiday pay plus premium pay for the hours worked.

• In other words, Bill 148 has removed the option of providing employees with a substitute day off in such circumstances.

• In circumstances where a public holiday falls on an employee’s day off, and the employee does not agree to work on the holiday, the general rule will be that the employer must provide a substitute day off with public holiday pay; however, employers and employees can still agree to forego the substitute day off and just pay public holiday pay for the •Where the substitute day is granted, that substitute day must be either the last work day prior to the public holiday or the first work day after.

• Personal Emergency Leave – effective January 1, 2018

Bill 148 makes significant changes to the personal emergency leave provisions of the ESA, including:

• maintaining the entitlement to ten (10) days per year, but requiring that (i) two (2) of the days be paid leave, and (ii) the two (2) paid days be granted before the eight (8) unpaid days;

• eliminating the 50-employee threshold, below which employers were previously exempt from the requirement to provide personal emergency leave – i.e. pursuant to Bill 148, personal emergency leave is now an entitlement in all workplaces, regardless of the number of employees;

• expanding the circumstances in which an employee is eligible for personal emergency leave to include domestic or sexual violence or the threat of such violence; and

• prohibiting employers from requiring an employee to provide a medical note to substantiate any claim for personal emergency leave.

Note, however that a medical note may still be requested; however, an employer may not insist upon such a note.

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 sick days, and/or paid bereavement leave. Do we have to add the two new paid emergency leaves to the sick and bereavement leaves we already give our employees?

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 will create the following new rights and obligations related to scheduling:

• Any employee with at least three (3) months’ service with his/her employer will have the right to right to request changes to his/her work schedule and/or work location; and reprisal against the employee on account of such a request is prohibited.

• The “3-hour reporting rule” (which stipulates that if an employee who regularly works more than three (3) hours in a day attends for a scheduled shift but works less than three (3) hours on account of the shift being cut short by the employer, the employee is entitled to be paid for at least three (3) hours) will be revised to require payment of those three (3) hours at the employee’s regular rate of pay (as opposed to at the minimum wage rate, as the current rule has been interpreted as providing for).

• In the event that he/she is provided with less than four (4) days’ advance notice by his/her employer, an employee will be permitted to refuse a shift or to refuse being placed “on call”; and reprisal against the employee on account of such a refusal is prohibited.

• An employer will be required to provide three (3) hours’ pay at the employee’s regular rate if a shift is cancelled within 48 hours immediately prior to its scheduled start. This obligation will also apply if an employee is scheduled to be “on call”, but the employer cancels that “on call” requirement within the same 48-hour window.

• A new minimum “on call” payment, equal to three (3) hours’ pay at the employee’s regular rate, must be provided to an employee who is placed “on call” but is not called into work. This will apply to each day of “on call” status (but only once per day).

• Characterization of Employee vs. Contractor – effective November 27, 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). In the even of a dispute, the “employee” characterization will be assumed – i.e. the burden of proof that the person is not an employee lies with the employer.

• Application of the ESA

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

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.

LRA Amendments

• Certification – effective January 1, 2018

Card-based certification will now be permitted in the building services, home care and community services, and temporary help agency industries. In that regard, the union will be certified if it can provide documentary proof that at least 55% of workers employed in the proposed bargaining unit support the union. A vote will be required if the union can provide proof of at least 40% support, but less than 55%.

The Ontario Labour Relations Board may now conduct votes outside the workplace, as well as electronically and by telephone.

In the event of employer interference with a union organizing effort, the remedy is now automatic certification of the union. Previously, this remedy could be ordered by the Labour Relations Board, but was not mandatory and automatic.

• Access to Worker Information – effective January 1, 2018

Unions with the support of at least 20% of workers in a proposed bargaining unit may now 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.

• Consolidation after Certification – effective January 1, 2018

The Ontario Labour Relations Board now as 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.

• Successor Rights – effective January 1, 2018

The “successor rights” provisions of the LRA have been expanded to include changes in building services providers. Building services are those provided, directly or indirectly, by or to a building owner or manager that are related to servicing the premises (including building cleaning services, food services and security services).

• 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 is now be required to prove “just cause.”

• Return to work – effective January 1, 2018

The six (6) month time limit for an employee to be reinstated following a legal strike or lock-out has been removed. Rather, an employer will be required to return the worker to work, regardless of how long the worker has been out.

Workers now also have the right to challenge any refusal of reinstatement following the strike or lockout; and this right can be enforced through the grievance and arbitration procedure.

• 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.

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