Labour & Employment Law Insights

Ontario Government Introduces Legislation to Amend Employment Standards Act, 2000 and Labour Relations Act, 1995

June 2, 2017 | By James G. Knight

Labour | Legislation | Employment

On June 1, 2017, the Government of Ontario introduced Bill 148: The Fair Workplaces, Better Jobs Act, 2017. Having passed the first reading stage, Bill 148 will move on to second and third readings. Amendments may be made throughout this process, until the legislation receives royal assent and becomes law. The proposed changes are in response to the Final Report of the Changing Workplaces Review released last week, a summary of which is available here.

The most significant changes to the Employment Standards Act, 2000 (“ESA”) and the Labour Relations Act, 1995 (“LRA”) are set out below. The Government of Ontario announced its intention to make these changes earlier this week, as summarized here.  Detailed analysis of the impact and implications of these changes will be forthcoming over the following weeks.

Changes to the Employment Standards Act, 2000

Scheduling:

  • Employees can request changes to their schedule or work location, which employers are required to discuss with the employee and either grant or provide reasons for a denial.
  • Employees must be paid a minimum of 3 hours at their regular rate for shifts that are under 3 hours, for being “on call”, and when a scheduled shift is cancelled with less than 48 hours’ notice. Employees can refuse to work on a day they were not scheduled to work if they receive less than 96 hours’ notice. Collective agreement provisions prevail.

Overtime: Employees who hold more than one position with an employer must be paid overtime at the rate for the position they are working on during the overtime period.

Minimum Wage: The minimum wage will increase to $14 per hour on January 1, 2018 and to $15 per hour on January 1, 2019, with annual inflation adjustment on October 1 of every year from 2019 onward. The minimum wage for liquor servers will apply only if the employee also regularly receives tips or other gratuities. The minimum wage for students will increase to $13.15 in 2018 and $14.10 in 2019.

Public Holidays: The calculation of public holiday pay is to be based on the number of days actually worked in the pay period immediately preceding the public holiday. Premium pay must be paid for work on a public holiday, rather than allowing a different day to be substituted. There are new substitution rules for when a public holiday falls on a day that an employee would not ordinarily work.

Vacation with Pay: After 5 years of employment with the same employer, vacation entitlement will increase to 3 weeks.

Equal Pay:  Full-time and part-time employees are entitled to equal pay for performing the same work. Employees of temporary help agencies who perform substantially the same work as employees of the agency’s client are also entitled to equal pay.

Leaves:

  • Family medical leave (to care for dying relatives) will increase from up to 8 weeks to up to 27 weeks (in a 52-week period).
  • New unpaid leave will be up to 104 weeks for the death of an employee’s child for any reason.
  • Crime-related child disappearance leave will increase from 52 to 104 weeks.
  • 10 personal emergency leave days per year will be available to all employees (50-employee threshold eliminated), the first 2 of which are required to be paid days. Employees would be able to use personal emergency leave days if they are a victim or have been threatened with domestic or sexual violence.
  • Employers will be prohibited from requiring a certificate from a qualified health practitioner for personal emergency leave.

Temporary Help Agencies: Employees must be provided with 1 week’s notice or pay in lieu of if an assignment that was estimated to last 3 months or more is terminated before its estimated end, unless another assignment of at least 1 week is offered to the employee.

Enforcement: Employment Standards Officers can order employers to pay wages directly to employees. Penalties for contraventions may be increased by changes to the applicable regulations, with greater discretion given to Employment Standards Officers. The Director of Employment Standards can publish information related to a deemed contravention, accept security for amounts owing, and issue warrants or register a lien to collect money owing.

Changes to the Labour Relations Act, 1995

Card Based Certification: There will be card-based union certification for temporary help agencies, the building service sector, and home care and community services.

Union Certification:  Proposed changes will:

  • Eliminate certain conditions for remedial union certification, allowing unions to more easily get certified when an employer engages in misconduct.
  • Make access to first contract arbitration easier, as well as adding an intensive mediation component to the first contract arbitration process.
  • Require the Ontario Labour Relations Board (“OLRB”) to address first contract mediation-arbitration applications prior to dealing with displacement and decertification applications.
  • Allow unions to access employee lists and certain employee contact information, if the union can demonstrate that it has already achieved the support of 20 per cent of employees involved.
  • Empower the OLRB to conduct votes outside the workplace, including electronically and by telephone and to authorize Labour Relations Officers to give directions relating to the voting process and voting arrangements.

Successor Rights: Successor rights will extend to the retendering of building services contracts, and apply successor rights to the retendering of other publicly funded contracted services.

Structure of Bargaining Units: The OLRB will have jurisdiction to change the structure of existing bargaining units within a single employer where the existing bargaining units are no longer appropriate for collective bargaining. Additionally, the OLRB would be able to consolidate newly certified bargaining units with existing bargaining units under a single employer where those units are represented by the same bargaining agent.

Return to Work Rights and Procedures: Amendments will remove the six-month limitation on employees being able to return to work after the commencement of a lawful strike and require an employer to reinstate an employee at the conclusion of a legal strike or lock-out. Employees would also have access to grievance arbitration for the enforcement of that obligation.

Just Cause Protection: Employees will be protected from being disciplined or discharged without just cause by their employer in the period between certification and the conclusion of a first contract, and in the period between the date the employees are in a legal strike or lock-out position and the new collective agreement.

For further information, please contact Jamie Knight, Rob Bayne, Alexa Sulzenko, or any other lawyer you deal with at Filion Wakely Thorup Angeletti LLP, at 416-408-3221.


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