Original Article: Blake Cassels & Graydon LLP | November 27 2017
On November 22, 2017, the Ontario government passed the Fair Workplaces, Better Jobs Act, 2017 (Bill 148), rolling out major changes to the province’s employment and labour laws, including the Employment Standards Act, 2000 and the Labour Relations Act, 1995. These changes will have significant implications for employers in Ontario.
Bill 148 was initially introduced in June 2017 following the recommendations proposed in The Changing Workplaces Review – Final Report. It has since been revised by the legislature and the key amendments of each act, in their final form, are summarized below. The commencement dates are subject to change depending on the date on which Bill 148 receives royal assent.
Commencing December 3, 2017:
- Parental leave: Entitlement to parental leave will increase from 35 weeks to 61 weeks for employees who take pregnancy leave, and from 37 weeks to 63 weeks otherwise. Employees will not be eligible for this increased leave entitlement with respect to children who are born or come into their care before the day that the amendment comes into force.
- Critical illness leave: Employees with six consecutive months’ of service will be entitled to a critical illness leave of absence of up to 17 weeks to provide care and support to a critically ill adult family member. This leave is in addition to the existing critically ill child care leave of up to 37 weeks.
Commencing January 1, 2018:
- Minimum wage: The general minimum wage will increase to C$14/hour (followed by a further increase to C$15/hour effective January 1, 2019).
- Vacation: The minimum vacation entitlement for employees with five or more years of employment will increase to three weeks per year.
- Holiday pay: The public holiday pay calculation has been simplified and will be based on the number of days actually worked in the pay period immediately preceding the public holiday. Employees who work on the public holiday and receive a substitute day off must also be provided with written notice of the date of the substitute holiday.
- Personal emergency leave: Employees in all workplaces (previously limited to workplaces with 50 or more employees) will be entitled to a personal emergency leave of up to 10 days per calendar year, which is comprised of two paid days and eight unpaid days of leave. Employees must be employed for one week or longer in order to be entitled to receive pay for two of the 10 days. While an employer may require an employee who takes this leave to provide evidence reasonable in the circumstances that the employee is entitled to the leave, the employer cannot require the employee to provide a certificate from a qualified health practitioner.
- Child death leave and crime-related child disappearance leave: An employee with six consecutive months of service whose child dies from any cause will be entitled to a child death leave for a period of up to 104 weeks. This leave is distinct from the crime-related child disappearance leave, which will also increase to 104 weeks.
- Family medical leave: Entitlement to family medical leave will increase from eight weeks in a 26-week period to 28 weeks in a 52-week period.
- Domestic/sexual violence leave: An employee who has been employed for at least 13 weeks will be entitled to a domestic/sexual violence leave of up to 10 days and up to 15 weeks, if the employee or a child of the employee experiences domestic or sexual violence (or the threat of such violence). The first five days of this leave must be paid.
- Misclassification: In alignment with the common law, it will be an offence for an employer to treat an employee as if that person were not an employee (i.e., misclassifying employees as independent contractors). In the case of a dispute, the burden of proof that the person is not an employee lies with the employer.
- Penalties for employers: The director of employment standards may make public (including via the Internet) the name of the employer and its contravention, if that employer is found in violation of employment standards legislation.
Commencing April 1, 2018:
- Equal pay for equal work: Employers will be prohibited from paying an employee at a rate of pay less than the rate paid to another employee because of a difference in employment status. This protection extends to temporary, seasonal, casual, part-time and temporary help agency employees. However, there are exceptions for differences in rate of pay based on factors other than employment status, such as seniority, merit and quantity or quality of production.
Commencing January 1, 2019:
- Minimum wage: The general minimum wage will increase to C$15/hour.
Scheduling: Eligible employees will have new rights related to scheduling, including the following:
- An employee will have the right to refuse an employer’s request or demand to work on a day that the employee was not scheduled to work if the request or demand is made less than 96 hours before the time the employee would commence work.
- If an employer cancels an employee’s scheduled day of work or on-call period with less than 48 hours’ notice, the employer will be required to pay the employee wages equal to the employee’s regular rate for three hours of work.
- An employee who is “on call” and not called to work (or who is called into work and works for less than three hours) must be paid his or her wages for three hours of work.
- An employee will be permitted to request a change to his or her schedule or work location after three months of employment. If the employer denies the employee’s request, the employer must provide written reasons for the denial.
Commencing January 1, 2018:
Certification: The following rules regarding certification of unions will take effect:
- Card-based certification will be permitted in the building services, home care and community services, and temporary help agency industries.
- Unions with the support of at least 20 per cent of an organization’s employees will be entitled to access a complete list of the employees in the proposed bargaining unit, along with those employees’ phone numbers and personal emails.
- The Ontario Labour Relations Board will be allowed to conduct votes outside the workplace, as well as electronically and by telephone.
- Consolidation of bargaining units: The Ontario Labour Relations Board will have the power to, among other things, consolidate a certified bargaining unit with an existing bargaining unit of employees of the employer represented by the same union.
- Successor rights: Successor rights will extend to the building services industry (i.e., building cleaning services, food services and security services).
- Prosecutions and penalties: Maximum fines for contravention will increase to C$5,000 for individuals and C$100,000 for organizations.
- Return to work: The requirement to reinstate an employee within six months of commencing a lawful strike has been expanded. Employers will now be required to reinstate employees upon request at any time following the commencement of a lawful strike.
NEXT STEPS FOR EMPLOYERS
In preparation for these changes, employers should begin the process of reviewing and revising all handbooks, policies and practices (including scheduling and payroll practices) that are affected by the new legislation. Additionally, employers should consider whether any of their offer letter or employment agreement templates will need to be updated to reflect the new minimum standards. Employers will also want to consider any training that may be necessary to ensure that managers, supervisors and other employee relations personnel are aware of, and in compliance with, the amendments once they come into force.
More broadly, it is important for employers to consider these amendments in the context of the legislation as a whole. For example, employees who are exempt from the hours of work requirements under the Employment Standards Act will also be exempt from the new scheduling rules.