January 5, 2018
On November 22, 2017 Ontario passed the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”) which contains significant amendments to labour and employment legislation in Ontario, including the Employment Standards Act, 2000, the Labour Relations Act, 1995, and the Occupational Health and Safety Act.
The Minister of Labour, Kevin Flynn, first introduced the legislation on June 1, 2017. Bill 148 went through several rounds of hearings and amendments at the committee stage. Bill 148 is a response to the Changing Workplaces Review: An Agenda for Workplace Rights prepared by special advisors C. Michael Mitchell and John C. Murray.
Bill 148 has been celebrated by labour advocates, and represents an overdue update to worker protections in the province. Below is a summary of select legislative amendments that are anticipated to have a significant impact in the province’s workplaces.
Employment Standards Act, 2000
- Employer duties – Bill 148 makes a number of significant amendments to the Employment Standards Act (“ESA”), most of which came into force on January 1, 2018. A number of new duties and obligations now govern workplace relationships in Ontario. Employers are now expressly prohibited from treating a person who is their employee as if they were an independent contractor. The onus is on the alleged employer to prove that the person is not an employee (s. 5.1). Employers are also obliged to pay three (3) hours’ wages where they cancel a shift within forty-eight (48) hours’ of its start time (s. 21.6).
- Scheduling – The new s. 21.6 permits employees to enjoy an express right to refuse a shift if it is provided with less than 96 hours’ (4 days) notice. Under the new Part VII.1, employees are entitled to request changes to their schedule or work location. Employers are required to discuss the changes with the requesting employee and either grant the request or provide reasons for the denial.
- Changes to the vacation, public holiday, and personal emergency leave provisions – The amendments to the ESA also include changes to the vacation, public holiday, and personal emergency leave provisions. Under the amended statute, employees whose period of employment is five (5) years or more are entitled to a minimum of three (3) weeks of vacation (s. 33). With respect to public holiday pay, s. 24 is amended to require public holiday pay to be based on the number of days actually worked in the prior pay period rather than the average wage earned by an employee over the four (4) weeks preceding the holiday. Finally, all employees are now entitled to ten (10) personal emergency leave days. Two (2) of such days are to be paid if the employee has been employed with the employer for at least one (1) week.
- Minimum Wage – Employees are now entitled to an increased minimum wage rate of $14.00/hour as of January 1, 2018. Minimum wage will be increased to $15.00 the following year and will be subject to an annual inflation adjustment on October 1 of every year, beginning in 2019.
Labour Relations Act, 1995
Bill 148 makes a number of amendments to the Ontario Labour Relations Act, 1995 (the “LRA”). The amendments were largely based on recommendations produced by the province’s Changing Workplace Report. However, the Bill did not adopt the recommendation that the LRA be extended to excluded groups such as domestic workers, trappers, agricultural workers, dentists, doctors and lawyers. However, significant changes were made that will be of interest to employers, employees, and trade unions.
- Employee list in organizing campaign – Bill 148 introduced several new rights for trade unions. Notably, the new s. 6.1 allows trade unions to apply to the Board for an order directing the employer to provide it with a list of employees where the union demonstrates support from 20% of the employees in the affected bargaining unit. This does not apply in the construction industry (s. 6.1(17)).
- Bargaining unit consolidation – Bill 148 has also reintroduced the power of the Board to modify and consolidate bargaining units on an application made by either an employer or a trade union. Under this provision, the Board may exercise several new powers, including the ability to consolidate a newly certified bargaining unit with an existing bargaining unit represented by the same union. The construction industry is exempt from the operation of this provision.
- Remedial Certification – Perhaps one of the most significant changes made is to the remedial certification provisions of the LRA. The new s.11(2) compels the Board to order remedial certification where an unfair labour practice committed by an employer interferes with the employees’ right to join a trade union of their choice.
- Other significant changes – Other significant changes include access to first contract mediation (s. 43); the extension of card-based certification for the building services, home care, and temporary help agency industries (s. 15.3); new successor rights provisions applicable to the building services industry (s. 69.1 and 69.2); and the extension of “just cause” protection to employees in the period between certification and the conclusion of a first collective agreement.
Occupational Health and Safety Act
Bill 148 makes a single change to the Occupational Health and Safety Act. A new section is added which prevents an employer from requiring a worker to wear footwear with an elevated heel unless it is required to perform work safely. An exception exists for performers in the entertainment and advertising industry.
Some of the foregoing changes in each piece of legislation are subject to exemptions.