By Leanne Standryk and Alexandra DelVecchio
In 2015, the Ontario Government announced a comprehensive review of issues affecting the modern workplace. Two advisors prepared a final report outlining 173 changes to the Employment Standards Act 2000 (“ESA”) and the Labour Relations Act, 1995 (“LRA”).
The Government introduced an Act to amend the Employment Standards Act 2000 and the Labour Relations Act, 1995 and to make related amendments to other Acts, referred to as the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”). Several amendments in Bill 148 went beyond the recommendations in the Final Report signalling a clear intention to provide greater security for employees and the demands of unions.
On November 27, 2017, Bill 148 received Royal Assent.
Amendments made by Bill 148 include:
- Increased minimum wage from $11.40 per hour to $14.00 per hour on January 1, 2018 and to $15.00 per hour January 1, 2019. The special minimum wage rates (i.e., students, liquor service) would increase by the same percentage for 2018 and 2019.
- With some exception, all employees (casual, part-time and seasonal) must be paid the same rate as full time employees performing work that is substantially similar. Differences due to merit or seniority are permitted.
- Temporary help agencies must pay assigned employees the same rates that their client’s employees receive where the work, skill, effort, responsibilities and working conditions are substantially similar.
- Increased vacation entitlement to 3 weeks and 6% vacation pay after 5 years of service.
- Public holiday pay is based on the actual days worked in the pay period immediately preceding the public holiday (total wages earned by an employee divided by the number of days actually worked).
- Employees working a public holiday must be provided with a dated written statement setting out when a day is substituted for a public holiday.
- New employee right to request schedule or work location changes without reprisal (available to employees with at least 3 months’ service). Employers must discuss each request with the employee and provide reasons for their denial.
- Employees have the right to refuse a shift or on call designation where less than 96 hours (4 days) notice is offered (exemptions apply).
- Employees regularly working more than 3 hours per day and given less than 3 hours work must receive 3 hours of pay at their regular rate of pay versus the minimum wage rate.
- 3 hours’ pay at the regular rate if a shift is cancelled within 48 hours of its scheduled start. This also applies if an employee is scheduled to be “on call” but that status is cancelled within the same 48 hour window (exemptions beyond the employer’s control apply).
- 10 days of personal emergency leave in all workplaces regardless of size. The first 2 days are to be paid where an employee has been employed for at least 1 week. Employers may require evidence of entitlement to such a leave, but they cannot demand a medical note.
- Paid leave for the first 5 days of Domestic or Sexual Violence Leave of up to 17 weeks off work.
- Family medical leave entitlement is increased to 28 weeks in a 52 week period.
- Expansion of Crime-related Child Death Leave up to 104 weeks.
- Pregnancy leave for employees who suffer a still-birth or miscarriage is extended to 12 weeks.
- Parental leave is extended to 61 weeks for employees who take a pregnancy leave or 63 weeks for those who do not. This is harmonized with the amendments to the Employment Insurance Act allowing parents to take a combined maximum of 18 months pregnancy and parental leave.
- Employers must keep records of vacation time and pay for 5 years and maintain records of employee on-call schedules, cancellations, notices for substitute holidays and documents related to domestic or sexual violence leave.
- Employers with multiple regular rates of pay must keep a record of when employees worked overtime at each rate.
- Temporary help agencies must keep a copy of notices provided to assigned employees regarding the termination of their assignment.
- Rebuttable presumption that workers are employees, with penalties to be levied against employers for misclassifying employees as independent contractors.
- Expansion of the list of professionals who can certify statutory leaves.
- Clarification and expansion of related employer provisions.
- Allowing use of electronic agreements.
- Increased penalties for non-compliance.
- Establish card-based certification for the following: Temporary Help Agency Industry, Building Services Sector, Home Care and Community Services Industry.
- Mandatory remedial certification in the event of an unfair labour practice where the true wishes of the employees were not likely reflected in a representation vote or if a trade union was not able to demonstrate that 40% or more of the individuals in the bargaining unit appeared to be members of the union.
- Union access to employee lists and certain contact information where the union can demonstrate 20% employee support.
- Empower the OLRB to conduct votes outside of the workplace (including electronic and phone voting) and to give directions relating to the voting process to ensure neutrality.
- Extend successor rights to retendering of building services contracts.
- Empower the OLRB to restructure bargaining units after certification but before the first collective agreement.
- Remove the 6 month limitation on the employee right to return to work after the start of a lawful strike.
- Increase maximum fines under the Act to $5,000 for individuals and $100,000 for organizations (up from $2,000 for individuals and $25,000 for organizations).
- Impose new requirement for employers to provide a statutory declaration setting out the number of individuals in the bargaining unit described in a certification application, if the employer disagrees with the trade union’s estimate.
- Make first contract mediation universally available after a No-Board report has been issued and allow for first contract mediation-arbitration where such mediation did not result in parties reaching a collective agreement.
Occupational Health and Safety Act
- Prohibition on requiring a worker to wear high heels in the workplace (except for the entertainment industry).
While the majority of the changes are scheduled to come into effect on January 1, 2018, there are changes that may be required as early as December 3, 2017. These developments have significant implications for provincially regulated employers who are encouraged to review their current policies and begin preparing for these changes now.
Questions about this new law, or any other labour/employment issue may be directed to the Labour & Employment team at Lancaster, Brooks & Welch LLP at 905-641-1551.