In Canada's most populous province, labour and employment matters are governed by two fundamental statutes: the Employment Standards Act and the Ontario Labour Relations Act. The Employment Standards Act sets out minimum rights and obligations for employers and employees in the province. The Labour Relations Act governs a host of matters regarding labour relations from certification and collective bargaining to unfair labour practices and decertification.
After nearly two years of public consultations and thorough reflection as to how to update this legislation in the face of changing workplaces, the Ontario government received 173 recommendations on May 23 2017 from the two special advisers it had appointed to the task.
The Ontario government's reaction was swift: it immediately announced its intention to make important legislative changes as a result of these recommendations. On June 1 2017 the government introduced a bill before the Legislative Assembly – the Fair Workplaces, Better Jobs Act, 2017 – with the aim of amending the Employment Standards Act and the Labour Relations Act to "create more opportunity and security" for workers.
This update outlines the most significant of those anticipated legislative changes.
Proposed changes to employment standards
Increased minimum wage
With few exceptions, the minimum wage will be raised to C$14 an hour as of 2018 and to C$15 an hour as of 2019, making Ontario the most generous province in terms of wages alongside Alberta. Before this change, wages would have continued to increase with inflation.
Equal pay for equal work for casual, part-time, temporary and seasonal employees
These changes aim to ensure not only that these employees receive the same salary as their full-time co-workers, but also that an employee who believes that he or she is not receiving equal wages can request a salary review without fear of reprisal.
Temporary help agency employees would be entitled both to the same wages as their permanent counterparts and to notice of termination (or pay in lieu) of one week if their assignment is scheduled to last more than three months.
These changes will doubtless have a profound impact for employers as well as temporary help agencies and those employers using them. The changes will come into force on April 1 2018.
Scheduling rights
Employees will be entitled to request schedule or location changes after three months of service, although employers are not required to accept such requests. This amendment aims to protect employees who make such requests against reprisals.
Employees will have the right to refuse shift work or on call work presented to them with less than 96 hours' notice.
Employees whose shifts are cancelled with less than 48 hours' notice who report to work in order to work for less than three hours (when they normally work more than that) will be entitled to three hours of pay.
On call employees who are ultimately not called into work will also be entitled to three hours of pay per 24-hour period.
These changes aim to foster more predictability for employees. An employer receiving such a request must discuss it with the employee and notify the employee of its decision within a reasonable timeframe. An employer denying the request must provide its reasons for the denial to the employee. As yet, it is unclear how many requests employees can make.
Overtime
For those employees holding several positions, the rate of pay used to calculate overtime pay will be that of the actual position performed. Blended overtime rates will be eliminated which, while simplifying administration, may increase labour costs for some employers.
Employee misclassification
Employers faced with a dispute on the classification of a contractor will have the burden of proving that the individual is not an employee. Employers that fail to do so could now face prosecution, public disclosure of a conviction and fines.
These legislative amendments, planned to come into force on January 1 2018, will no doubt cause employers to think carefully before engaging contractors.
Joint liability of related businesses
As of January 1 2018, it will be easier to take action against a related business for an Employment Standards Act violation of another business. The current criterion of "intent or effect" of defeating the act will be eliminated, making it easier to collect moneys from third-party related businesses.
Increased paid vacation
On January 1 2018 Ontario will join the few Canadian jurisdictions that offer more generous vacation entitlements. Employees will be entitled to three weeks of paid vacation after five years of service.
Paid emergency leave
All employers will be required to grant 10 days of personal emergency leave days to employees, regardless of the size of their workforces. Significantly, two of these personal emergency days must now be paid and employers will no longer be allowed to request sick notes from qualified health practitioners, but can still require employees to provide 'reasonable evidence'. This change will be effective on January 1 2018. Interestingly, the report recommended only that doctor's notes be paid by employers.
Extended family medical leave
Extended family medical leave, used to provide support or care to dying family members, will be increased to 27 weeks in a 52-week period as of January 1 2018.
Electronic agreements
In a welcome change for employers, the Employment Standards Act will now make it clear that agreements between employers and employees can be made electronically as of January 1 2019 (eg, by email), including with respect to working hours and overtime.
Focus on enforcement
Various measures are anticipated in connection with enforcement of the legislation. Notably, the Ministry of Labour has stated that penalties for noncompliance will increase from C$250, C$500 and C$1,000 to C$350, C$700 and C$1,500. These amounts will be determined by regulation. Wage collection, whether by the government or by an authorised collector, will also be facilitated through various means as of January 1 2018.
Beyond these legislative amendments, the government has also signalled its intention to invest heavily in enforcement of the Employment Standards Act by hiring up to 175 officers to conduct workplace audits and investigate complaints.
The Ministry of Labour has also announced its intention to conduct a more comprehensive review of various Employment Standards Act exemptions and special industry rules as early as this autumn. This review will include exemptions for managers and supervisors.
Proposed changes to Labour Relations Act
All proposed changes to the Labour Relations Act are to come into force six months after the date on which the Fair Workplaces, Better Jobs Act, 2017 receives royal assent.
Return to card-based union certification
Certification will now be card-based in specific industries, including:
- the temporary help agency industry;
- the building services sector; and
- the home care and community services industry.
As noted by the two special advisers, card-based certification outcomes are better for unions and these changes will presumably have a significant impact in these workplaces.
Automatic certification
Unions can now be more easily certified when an employer violates the Labour Relations Act.
First contract arbitration
The amendments aim to make first contract arbitration more accessible, along with mediation.
Secret ballot voting
Votes outside the workplace will now be permissible – including by telephone and electronically – with the Ontario Labour Relations Board (OLRB) empowered to give directions regarding the voting process.
Access to employee lists and contact information
A union will now be able to file an application with the OLRB for access to an employee list. If the OLRB is satisfied that the union has garnered the support of 20% of employees, it will have a right to access employee lists. This list must include the name of each employee in the proposed bargaining unit and his or her phone number and personal email, if this was provided to the employer.
Bargaining unit structure
Similar to the federal sector and of interest to employers, the OLRB will be empowered to change the structure of bargaining units where they are no longer appropriate and to consolidate newly certified bargaining units under a single employer after the filing of an application by employers or unions.
Enhanced protection regarding lawful strikes and lockouts
The current six-month limitation for a right to return to work after a legal strike or lockout will be removed.
Employers will also be required to prove just cause when disciplining or firing an employee from the date employees are in the position of a lawful strike or lockout until a first collective agreement is reached, as well as during the period between certification and the conclusion of a first contract.
To the surprise of many, the Ontario government swiftly introduced the bill before the Legislative Assembly breaks for the summer. The matter has also been speedily referred to the Standing Committee on Finance and Economic Affairs. This may be employers' last opportunity to be heard on the proposed changes before they become law, given the governing party's majority at the Legislative Assembly. Therefore, employers will want to monitor this matter closely as it progresses through the committee and as matters relating to exemptions under the Employment Standards Act will become open to comments and discussions between the government and various stakeholders.
It will be interesting to see whether, as a result of the committee's work, other recommendations made by the special advisers make their way into this bill or into future amendments to the Employment Standards Act and the Labour Relations Act. With the business community and labour organisations concerned about the scope of the special advisers' recommendations, it remains to be seen whether Ontario's government will strike the balance it wishes to achieve in this endeavour.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
For further information on this topic please contact Sophie Arseneault at Fasken Martineau DuMoulin LLP's Ottawa office by telephone (+1 613 236 3882) or email ([email protected] ). Alternatively, contact Christian Paquette at Fasken Martineau DuMoulin LLP's Toronto office by telephone (+1 416 366 8381) or email ([email protected]). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.
This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.
