The Fair Workplaces, Better Jobs Act, 2017, received Royal Assent on November 27, 2017. The broad ranging Act raises the minimum wage, changes the rules for part-time and contract workers, and expands personal emergency leave. The minimum wage will increase to $14 an hour on January 1, 2018, and to $15 an hour on January 1, 2019.
Key provisions of the legislation that are now in effect include:
Protection Against Employee Misclassification: The Employment Standards Act, 2000, now expressly prohibits employers from misclassifying employees as “independent contractors.” This is intended to address cases where employers classify their employees as if they are self-employed and not entitled to the protections of the ESA. In the event of a dispute, the employer would be responsible for proving that the individual is not an employee.
Changes to the Occupational Health and Safety Act: The Act now prevents employers from requiring a worker to wear footwear with an elevated heel, for example, high heels, at work, unless such footwear is required for the worker’s safety.
Critical Illness Leave: An employee will be entitled to take up to 17 weeks of leave in a 52-week period to provide care or support to a critically ill adult family member.
Parental Leave: The length of parental leave will increase; this leave was up to 35 weeks long if the employee took pregnancy leave, and 37 weeks otherwise. As of December 3, 2017, it can be up to 61 weeks if the employee takes pregnancy leave, and up to 63 weeks otherwise. The Critical Illness Leave and Parental Leave changes were made to align with federal changes to Employment Insurance.
Employers will be required to pay casual, part-time, temporary, and seasonal employees the same rate as full-time, permanent employees when doing the same job. This will also apply for temporary help agency employees doing the same job as permanent employees at the company they are assigned to. These provisions will come into effect on April 1, 2018.
The following is a technical briefing provided by the Ministry of Labour on the changes in Bill 148 that come into effect on January 1, 2018.
Backgrounder
Modernizing Ontario’s Labour Laws to Create Fairness and Opportunity:
The Fair Workplaces, Better Jobs Act, 2017
The Ontario legislature has passed the Fair Workplaces, Better Jobs Act, 2017. The new legislation includes broad ranging amendments to Ontario’s Employment Standards Act, 2000 and Labour Relations Act, 1995 and Occupational Health and Safety Act.
Minimum Wage Increases
Ontario is increasing its minimum wage rates – generally, the lowest rate that can be paid by employers to employees.
The general minimum wage will increase to:
$14 per hour on January 1, 2018, and
$15 per hour on January 1, 2019
Changes to Employment Standards
Equal Pay for Equal Work Provisions: Casual, Part-time, Temporary & Seasonal Employees
The new legislation will require that casual, part-time, temporary, and seasonal employees are paid equally to full-time employees when performing substantially the same job for the same employer.
The new Act will enable employees to request a review of their rate of pay if they believe that they are not receiving equal pay to full-time or permanent employees. The employer would then have to respond to the request with either an adjustment in pay or a written explanation.
Exceptions to the requirement for equal wages where a wage difference is based on:
Seniority system, merit system, systems that determine pay by quantity or quality of production, other factors (sex and employment status do not qualify as exceptions to this requirement).
The new Act will also protect casual, part-time, temporary, and seasonal employees against repercussions for inquiring about their wage rate or asking another employee about their wage rate.
This provision comes into force on April 1, 2018.
The legislation requires the Minister of Labour to start a review of equal pay provisions for casual, part-time, temporary & seasonal employees by April 1, 2021.
Equal Pay for Equal Work Provisions: Temporary Help Agency Employees
The Act will require that Temporary Help Agency (THA) employees (assignment workers) are paid equally to employees of the THA client when performing substantially the same job.
The Act will protect assignment employees from repercussions for inquiring about their wage rate or the wage rate of an employee of the client.
This provision comes into force on April 1, 2018.
The legislation requires the Minister of Labour to start a review of equal pay provisions for Temporary Help Agency Employees by April 1, 2021.
Termination of Assignment
The legislation requires a THA to provide an assignment employee with at least one week’s notice when an assignment scheduled to last longer than three months will be terminated early.
If one week’s notice is not given, the assignment employee must receive pay in lieu of notice, unless the assignment employee is offered at least one week’s worth of reasonable work during the notice period.
This provision comes into force on January 1, 2018.
Scheduling
The legislation sets out new scheduling rules:
Employees will have the right to request schedule or location changes after having been employed for three months, without fear of reprisal.
Employees who regularly work more than three hours per day, but upon reporting to work are given less than three hours, must be paid for three hours of work.
Employees can refuse to accept shifts without repercussion if their employer asks them to work with less than 96 hours’ notice.
If a shift is cancelled within 48 hours of its start, employees must be paid three hours at their regular rate of pay.
When employees are “on-call” and not called in to work or work less than three hours, they must be paid for three hours of work. This will be required for each 24-hour period that employees are on-call.
The new legislation provides a transition period for existing collective agreements until the earlier of their expiry or January 1, 2020.
There are a number of exceptions to the new scheduling requirements that reflect a number of situations, including emergencies and ensuring delivery of essential public services.
These scheduling rules come into force on January 1, 2019.
Overtime Pay
Under the legislation, employees who hold more than one position with an employer and who are working overtime must be paid at the rate for the position they are working at during the overtime period.
This provision comes into force on January 1, 2018.
Employee Misclassification
The new legislation prohibits employers from misclassifying employees as “independent contractors.” This is intended to address cases where employers improperly treat their employees as if they are self-employed and not entitled to the protections of the ESA. In the event of a dispute, the employer would be responsible for proving that the individual is not an employee. This employee misclassification provision comes into force on Royal Assent.
Joint Liability of Related Employers
The new legislation removes the provision that requires proof of “intent or effect” to defeat the purpose of the Employment Standards Act, 2000 when determining whether businesses carrying on associated or related activities can be treated as one employer and held jointly and severally liable for monies owing under the Act. Previous language in the ESA had limited the effectiveness of the joint liability provisions. This change restores the original intention.
This provision comes into force on January 1, 2018.
Paid Vacation
The legislation ensures that employees are entitled to three weeks of paid vacation after five years of service with the same employer.
This provision comes into force on January 1, 2018.
Public Holiday Pay
The new Act simplifies the formula for calculating public holiday pay so that employees are entitled to their average regular daily wage. The new legislation requires an employer to provide an employee with a written statement that sets out certain information when a day is substituted for a public holiday.
This provision comes into force on January 1, 2018.
Paid Emergency Leave
Before the Fair Workplaces, Better Jobs Act personal emergency leave (PEL) applied only in workplaces with 50 or more employees. Under the new legislation, this threshold has been eliminated.
The new legislation ensures all employees are entitled to 10 PEL days per year, including two paid PEL days where the employee has been employed for at least one week. It also bans employers from requiring an employee to provide a sick note from a qualified health practitioner when taking personal emergency leave.
This provision comes into force on January 1, 2018.
Domestic or Sexual Violence Leave
A new domestic and sexual violence leave is established.
For employees that have been employed for at least 13 consecutive weeks, the new legislation provides up to 10 individual days of leave and up to 15 weeks of protected leave when an employee or their child has experienced or is threatened with domestic or sexual violence. The first five days of leave each calendar year would be paid, the rest would be unpaid.
The new legislation also requires employers to put mechanisms in place to protect the confidentiality of records they receive or produce in relation to an employee taking domestic or sexual violence leave.
These leave provisions come into force on January 1, 2018.
Pregnancy Leave
For an employee who suffers a pregnancy loss, the new legislation increases the length of the potential extension to the 17-week leave from up to 6 weeks to up to 12 weeks.
This provision comes into force on January 1, 2018.
Amendments to Leaves Made as a Consequence to Changes in Federal Legislation
Critical Illness Leave
Prior to the Fair Workplaces, Better Jobs Act, 2017 employees could take up to 37 weeks to provide care or support to their critically ill child.
Under the new changes, an employee is entitled to take up to 17 weeks of leave in a 52 week period to provide care or support to a critically ill adult family member and up to 37 weeks to provide care or support to a critically ill child who is a family member. These changes came into force on December 3, 2017.
Family Medical Leave
The legislation increases Family Medical Leave from up to 8 weeks in a 26-week period to up to 28 weeks in a 52-week period. This provision comes into force on January 1, 2018.
Leave for the Death of a Child and for Crime-Related Disappearance
The legislation creates a new, separate leave for child death from any cause for a period of up to 104 weeks. The new amendments also establish a separate leave for crime-related child disappearance for a period of up to 104 weeks. This provision comes into force on January 1, 2018.
Parental Leave
Parental leave has been increased. Formerly this leave was up to 35 weeks if the employee took pregnancy leave, and 37 weeks otherwise. Under the new legislation, it can be taken up to 61 weeks if the employee took pregnancy leave, and up to 63 weeks otherwise. This change comes as a consequence of new federal changes to Employment Insurance. The provision comes into force on the later of December 3, 2017 or Royal Assent.
Orders to Pay Employees Directly
| The new Act also allows Employment Standards Officers to order money to be paid directly to an employee when an employer or Temporary Help Agency client owes money to that employee. |
This provision comes into force on January 1, 2018.
Employee Contact
The legislation no longer requires employees to contact their employer before filing claims under the Employment Standards Act (ESA).
The Director of Employment Standards can no longer refuse to assign an Employment Standards Officer to investigate an ESA claim due to insufficient information from the claimant.
This provision comes into force on January 1, 2018.
Penalties for Non-Compliance of the ESA
The legislation increases flexibility around the administrative monetary penalties that can be established by regulations for employers that do not comply with the ESA.
The government also intends to amend a regulation under the ESA to increase the maximum administrative monetary penalties for non-compliant employers from $250, $500, and $1000 to $350, $700, and $1500, respectively.
The new legislation allows the Director of Employment Standards to publish (including online) the names of individuals who have been issued a penalty, a description of the contravention, the date of the contravention and the amount of the penalty.
This provision comes into force on January 1, 2018.
Interest on Unpaid Wages
The legislation enables Employment Standards Officers to award interest on employees’ unpaid wages and on fees that were unlawfully charged to employees.
The Director of Employment Standards would be allowed, with the Minister’s approval, to determine rates of interest for amounts owing under different provisions of the ESA.
This provision comes into force on January 1, 2018.
Collections
The new changes improve wage collections by the government or an authorized collector, including:
Allowing a collector authorized by the Director of Employment Standards to issue warrants, place liens on real and personal property and to hold a security while a payment plan is underway enabling government and the authorized collector to disclose information to each other for the purpose of collecting an amount payable under the ESA
This provision comes into force on January 1, 2018.
Electronic Agreements
The new changes make clear that electronic agreements between employers and employees, such as an agreement to work excess hours, can serve as an agreement in writing.
This provision comes into force on January 1, 2018.
Exclusions
Under the new legislation:
Almost all existing ESA requirements and entitlements apply to Crown employees. This provision comes into force January 1, 2018.
All ESA requirements and entitlements apply to people receiving training for work through their employer. This provision comes into force January 1, 2018.
Individuals working as part of an experiential learning program run by a private career college would be excluded from the requirements and entitlements under the ESA, similar to programs run by universities, colleges, or high schools.
Students who are employed and regularly work more than three hours must be paid for at least three hours even if they work less than three hours. This provision comes into force January 1, 2019.
All ESA requirements and entitlements apply to employees working in a simulated job or working environment for their rehabilitation (commonly known as a “sheltered workshop”). This provision comes into force on January 1, 2019.
The Ministry of Labour is currently conducting a consultation on ESA exemptions and special industry rules as well as LRA exclusions. This review includes exemptions in place for managers and supervisors. News on this consultation will continue to be posted to the Ministry of Labour website.
Changes to the Labour Relations Act
Union Certification
The new legislation will:
Establish card-based union certification for the building services industry, the home care and community services industry and the temporary help agency industry.
Make the following changes to the union certification process:
o Eliminate certain conditions for remedial union certification, allowing unions to more easily get certified when an employer engages in misconduct that contravenes the LRA.
o Make access to first contract arbitration easier, and also add an intensive mediation component to the process.
o Require the Ontario Labour Relations Board (OLRB) to address first contract mediation-arbitration applications before dealing with displacement and decertification applications.
o Allow unions to access employee lists and certain contact information provided the union can demonstrate that it has already achieved the support of 20 per cent of employees in the proposed bargaining unit. The use of this list is subject to conditions and limits and all reasonable steps must be taken to protect the security and confidentiality of the list.
o Expressly empower the OLRB to conduct votes outside the workplace, including electronically and by telephone.
o Empower the OLRB (and Labour Relations Officers if authorized by the OLRB) to give directions relating to the voting process and voting arrangements in order to help assure the neutrality of the voting process.
Successor Rights
The new legislation extends successor rights to the retendering of building services contracts.
The Act also enables the government to apply successor rights, by regulation, to other types of service providers that receive public funds.
Structure of Bargaining Units
The changes allow the OLRB to review the structure of bargaining units in certain circumstances and to consolidate a newly certified bargaining unit with other existing bargaining units at the same employer, where those units are represented by the same bargaining agent. The OLRB will also be allowed to make other related orders. The changes also allow the parties to jointly agree to review the structure of bargaining units at any time. Following such a review, the parties could make a joint application for consent of the Board to consolidate bargaining units and make related changes.
Return-to-Work Rights and Procedures
Formerly the LRA gave employees the right, under certain conditions, to return to work within six months of the commencement of a lawful strike. The new legislation removes the six-month limitation.
A new provision also requires an employer to reinstate an employee at the conclusion of a legal strike or lock-out (subject to certain conditions), and to provide access to grievance arbitration for the enforcement of that obligation.
Just Cause Protection
The new legislation protects employees in a bargaining unit from being disciplined or discharged without just cause by their employer in the period between certification and the date on which a first contract is entered into (or the date on which the union no longer represents the employees), and during the period between the date the employees are in a legal strike or lock-out position and the date the new collective agreement is entered into (or the date on which the union no longer represents the employees).
Fines
The new legislation increases maximum fines under the Labour Relations Act to $5,000 for individuals and $100,000 for organizations (formerly these fines were $2,000 for individuals and $25,000 for organizations).
Coming Into Force
All labour relations proposals came into force on the date of Royal Assent.
Changes to the Occupational Health and Safety Act
The new legislation prevents employers from requiring a worker to wear footwear with an elevated heel (i.e., high heels) at work, unless such footwear is required for the worker’s safety.
There is an exception for employers of entertainment and advertising industry performers.
This change came into effect on Royal Assent.
Enhancing Employment Standards Enforcement
The province plans to hire up to 175 more employment standards officers and has launched the Employment Standards Training and Education Program to educate both employees and small and medium-sized businesses about their rights and obligations under the Employment Standards Act, 2000. Education will help employers understand their obligations.
Once the new employment standards officers are hired, by 2020-2021, the Employment Standards program will resolve all claims filed within 90 days and inspect 1 in 10 Ontario workplaces. Additionally, the program will provide compliance assistance to new employers specifically focusing on small and medium-sized business. This will help good employers understand their obligations.
Enforcement will focus on employers who compete unfairly by breaking the law, and will level the playing field for the majority of employers that follow the rules.
Increased enforcement will aim to motivate compliance and deter non-compliance. This requires resources in enforcement and in education to impact employer behaviour and deter potential violators.
These new resources will help to ensure that the newly legislated changes to the ESA are fully and effectively implemented.
