By Landon P. Young and Amanda D. Boyce
Ontario’s Conservative government has moved to repeal most of the changes to the province’s employment and labour legislation made by the prior government’s Bill 148.
Most of the Bill 148 amendments came into force just under a year ago on November 27, 2017. We wrote extensively about the sweeping nature of those changes.
After significant input from business groups, the government has introduced Bill 47, Making Ontario Open for Business Act, 2018 (“Bill 47”). To view the text of the Bill after it passed First Reading, click here. The Bill is currently in its early stages at first reading and may undergo revisions before it is passed into law, just as Bill 148 did.
The below-noted changes to the Employment Standards Act are set to come into force on the day Bill 47 receives Royal Assent or on January 1, 2019, whichever is later. The changes to the Labour Relations Act will come into force on the day Bill 47 receives Royal Assent. In light of this timeline, it does seem that the government intends to push the Bill through some time before the end of 2018. This would be in time to repeal certain provisions of Bill 148 that would otherwise be due to come into effect at the start of 2019.
Notably, all other Bill 148 amendments, such as the introduction of Domestic Violence Leave and the increase in minimum vacation entitlements after five years of service, will remain unchanged.
Set out below is a summary of the most significant aspects of Bill 47. For a fulsome discussion of the below-noted changes and how to prepare your organization, be sure to attend our 32nd Annual Employers’ Conference on November 8, 2018.
Changes to the Employment Standards Act (the “ESA”)
Freezing Minimum Wage
Bill 148 increased the minimum hourly wage from $11.60 to $14 an hour on January 1, 2018. Minimum wage was set to increase to $15 an hour on January 1, 2019, with annual adjustments for inflation thereafter.
Bill 47 will not roll minimum wage back to pre-Bill 148 levels, but it will halt the scheduled January 1, 2019 increase and freeze minimum wage at $14 an hour for 33 months, with annual adjustments for inflation on October 1 of every year starting in 2020.
Incoming Scheduling Changes to be Repealed
The following scheduling provisions that are currently set to come into force on January 1, 2019 are to be repealed:
- The right for an employee to request changes to schedule or work location after being employed for at least three months;
- Entitlement to a minimum of three hours’ pay for being on-call if the employee is available to work but is not called in to work, or works less than three hours;
- The right for employees to refuse requests or demands with fewer than 96 hours’ notice to work or to be on-call on a day that an employee is not scheduled to work or to be on-call;
- Entitlement to three hours’ pay at their regular rate in the event of cancellation of a scheduled shift or an on-call shift within 48 hours before the shift was to begin; and
- The record-keeping requirements that relate to the above-noted scheduling provisions.
Bill 47 will preserve a version of the “three-hour rule” by requiring employers to pay employees for three hours at their regular rate when an employee who regularly works more than three hours a day is required to report to work, but works less than three hours.
This requirement will not apply if the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer’s control that result in the stopping of work.
Personal Emergency Leave Days Replaced
Since January 1, 2018, all employers have been required to provide employees with ten days of Personal Emergency Leave (“PEL”) days, the first two of which are paid. Previously, PEL days were only available to employers with 50 or more employees and employers did not have to pay employees when they took PEL days.
Bill 47 will eliminate the two paid leave days and substitute a package of unpaid leave days for personal illness, injury or medical emergency (3 days), family responsibility (3 days) and bereavement (2 days) for a total of 8 days per year rather than 10.
Bill 148 prohibited employers from requiring employees to produce notes from a medical practitioner to justify taking a PEL day for illness. Bill 47 would repeal this restriction. Employers will once again be able to require employees to provide evidence “reasonable in the circumstances” to support taking a leave day, which can include a doctor’s note.
In with the Old: Public Holiday Pay
Bill 47 returns the “old formula” prior to the Bill 148 amendments that required employers to calculate the public holiday pay payable to an employee by taking 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, and dividing by 20.
In an effort to increase entitlements for part-time and casual employees, Bill 148 altered the public holiday pay calculation. As of January 1, 2018, employers were required to divide the total amount of regular wages earned in the pay period immediately preceding the public holiday by the number of days the employee worked in that period.
Employers complained that this method was confusing and unworkable, and generated undesirable results. For instance, casual employees who worked few shifts were often entitled to more public holiday pay than regular employees.
The Liberal government had already reverted to the “old formula” on a provisional basis, pending further consultation, with the introduction of Ontario Regulation 375/18 on May 7, 2018. Bill 47 would amend the ESA to make the “old formula” permanent.
No More Reverse Onus for “Misclassification” of Employees
Bill 148 codified the existing case law prohibiting employers from treating employees as though they are not employees for the purposes of the ESA. But bill 148 went one step further and reversed the onus of proof so that employers were required to prove that the individual met the test for independent contractor status if challenged by the Ministry of Labour except in the case of prosecutions under the ESA.
Bill 47 leaves the substantive provision prohibiting employers from misclassifying employees intact, but removes the reverse onus on organizations to prove their innocence.
Equal Pay for Equal Work (Employment Status and Assignment Employee Status)
Bill 148 added equal pay for equal work provisions on the basis of “employee status”, which includes whether the employee is part-time, casual, or temporary or “assignment employee status”, which means employed through a temporary agency.
Bill 47 would repeal the prohibitions based on employment status and assignment employee status. However, it would maintain the prohibition against discriminating on the basis of sex.
Bill 47 would remove the employee rights introduced by Bill 148 to request a review of their rate of pay by their employer if they believe they are being paid differently based on sex, as well as employers’ obligation to adjust the pay accordingly, or provide a written response if the employer disagrees.
The ESA still prohibits employers for paying an employee of one sex at a rate of pay less than the rate paid to an employee of the other sex when performing substantially the same kind of work since 2000.
Penalties for Contravention
The government has announced its intention to reinstate previous administrative penalties for contraventions of the ESA. The penalties were increased by regulation in December 2017, and will decrease from $350 to $250, and accordingly from $700 to $500 for a second offence, and from $1500 to $1000 for subsequent contraventions.
Sheltered Workshops Exemption
Currently, the ESA does not apply to individuals who perform work in a simulated job or working environment if the primary purpose is the individual’s rehabilitation. This exemption is set to be repealed on January 1, 2019, but Bill 47 would delay the repeal and it would come into force on a day to be named by proclamation.
Changes to the Labour Relations Act (the “LRA”)
Card-based Certification Ousted for “Specified Industry Employers”
Bill 47 would repeal card-based certification in home care, building services, and temporary help agency industries, and would reinstate voting through secret ballot. Card-based certification for these industries was brought in by Bill 148.
No More Access to Employee Lists
Bill 47 would repeal the rules which allow a union to apply to the Ontario Labour Relations Board (the “OLRB” or the “Board”) for an order requiring the employer to produce a list of employees in industries other than the construction industry.
The changes brought in by Bill 148 gave the OLRB the power to order an employer to provide a list of its employees, with contact info, if 20% or more of the individuals in the group had signed union cards. The intent of the Bill 148 changes was to make it easier for unions to organize non-union employers.
Reinstating Old Rules Regarding Remedial Certification
Bill 148 expanded the discretion of the OLRB to order that an employer be automatically unionized without an employee vote if it found that the employer had committed an unfair labour practice. The OLRB did not have to be satisfied that automatic certification was the only sufficient remedy for the employer’s breach of the Act.
Bill 47 would bring back the longstanding test that existed pre-Bill 148, being that the OLRB should only automatically certify an employer if a new vote of the employees would be an insufficient remedy. Under that test, only the most egregious of employer unfair labour practices typically resulted in automatic certification. The OLRB will also be required to consider the results of a previous representation vote and whether the trade union appears to have membership support adequate for the purposes of collective bargaining.
On the day that the above-noted revisions come into force, the OLRB will be required to determine any applications previously made, but not yet determined, in accordance with the Bill 47 requirements.
Bill 47 would repeal the regulation-making authority to expand successor rights to contract tendering for publicly-funded services such as homecare.
Surprisingly, Bill 47 would preserve the current section 69.1 introduced by Bill 148 which deems any new provider of building services to be a successor employer. The services include building cleaning, food, and security services.
This departs from the usual test where the union must show that enough assets and other aspects of a business, including but not limited to employees, were transferred to constitute a “sale of business.” This has significant implications for building owners, including condo corporations, as it effectively means that once a union gets in, the union and its collective agreement will continue to apply even if the owner changes building service providers.
Structure of Bargaining Units
Bill 47 would repeal the provisions introduced by Bill 148 allowing the Board the ability to review the structure of bargaining units. In their place, where an employer or union that represents a bargaining unit of employees of an employer requests review, Bill 47 would empower the OLRB to review the structure of bargaining units only where it is satisfied that the existing bargaining units are no longer appropriate for collective bargaining. Notably, this section would not apply to construction industry employers.
Where no collective agreement is in operation and the Minister has appointed a conciliation officer or mediator under the LRA, Bill 47 would increase the amount of time before a strike or lockout is permitted from seven to nine days after the Minister releases the report of the conciliation board or mediator, or from 14 to 16 days after the Minister releases a “no board” notice.
Bill 47 would reintroduce the six month limitation on an employee’s right to reinstatement following the start of a strike or lock-out. If an employee had made an application to return to work before Bill 47 comes into force, the six month time limitation would be imposed on that application.
The existing exceptions to this right of reinstatement would remain intact. If there is insufficient work for all striking employees, they will be placed on layoff in accordance with the seniority provisions of the applicable collective agreement.
Bill 47 will also repeal the right for returning employees to be reinstated, and to displace any person who performed bargaining unit work during the strike or lockout if the returning employee had longer service than the other employee when the strike or lockout began.
First Collective Agreement Mediation and Mediation-Arbitration
Bill 148 expanded the ability of unions and employers to apply for binding first agreement mediation and mediation-arbitration. Bill 47 would provide for first agreement arbitration if the OLRB is satisfied that bargaining has been unsuccessful due to the uncompromising nature of the bargaining position taken by a party without justification among other reasons. The Board will still have broad discretion to grant first agreement arbitration if it so wishes.
Bill 47 will repeal the Bill 148 first collective agreement mediation and mediation-arbitration provisions and provisions for educational support that applied before the application made it to arbitration.
Bill 47 would also institute procedural changes regarding the order of proceedings when multiple applications for first agreement arbitration as well as displacement or decertification are made concurrently.
Collective Agreements Publicly Available
Bill 47 would require the Minister to make all collective agreements publicly available, including by being posted on the Government of Ontario website.
Bill 47 will reinstate the previous maximum fines for offences under the LRA by decreasing the fines from $5,000 to $2,000 for individuals and from $100,000 to $25,000 for organizations.
Streamlining and Improving Processes
Bill 47 would streamline proceedings at the OLRB by allowing parties to serve documents by mail, courier, fax, or email. Further, the OLRB would be given greater flexibility in managing its own processes and procedures, and would no longer require input from the Lieutenant Governor in Council to institute new rules to control its procedures.
Bill 47 would also alter the deemed timelines for delivery of documents to the Minister as follows:
- Where any request, application, or filing is delivered to the Minister’s office at a time when it is open, it will be deemed to be given or made on the day shown on a receipt or acknowledgment provided by the Minister or his or her representative
- Where it is mailed with a method that allows delivery to be verified, it will be deemed to be given or made on the day shown in the verification.
- If it is sent via fax or email, it is deemed to be given or made on the day on which the fax or email is sent, unless it is sent after 5pm or on a day the Minister’s office is closed, in which case it is deemed received the following day.
- Where it is electronically filed, it is deemed given or made on the day on which the electronic filing was made, unless it is sent after 5pm or on a day the Minister’s office is closed, in which case it is deemed received the following day.
Decisions, orders, and other communications from the Minister or from an arbitrator or arbitration board will deemed to be released the day they are sent.
For more information contact: Landon P. Young and Amanda D. Boyce