Important Changes to Labour and Employment Laws in Ontario and What Employers Need To Know

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September 25th, 2017

Collingwood, ON [25 September 2017}  Stephen Goodwin a partner at Hicks-Morley, will be speaking at an Information Session on table Bill 148, hosted by the Collingwood Chamber of Commerce on September 28, 2017, 1:00 pm at the Royal Canadian Legion. Click Here for details on this and other important business events. 

On June 1, 2017, the liberal government tabled Bill 148, the Fair Workplaces, Better Jobs Act, 2017.  This was less than one week after the comprehensive report (400+ pages) was issued in the Changing Workplaces Review, commissioned by the government.  That report had over 300 recommendations to modernize Ontario’s labour and employment laws, focussing to a great extent on what has been termed “precarious employment”.

What will this mean?  If you are an employer, you will need to understand how this will impact your operation and your costs.  This legislation will provide the most comprehensive amendments to the Employment Standards Act and the Labour Relations Act since 2000.  The bill has already passed first reading in June and in late August was amended in preparation for second reading when Queen’s Park resumes sitting, starting September 11, 2017.  The Bill will likely be passed into law in the Fall of 2017, with many of the changes coming into place shortly thereafter.  This means that all employers should start planning now for how this may impact their operations.

Changes to the Employment Standards Act.

The minimum wage will increase substantially, to $14 on January 1, 2018, then to $15 on January 1, 2019, then indexed to the CPI.  Wages for part-time, casual, temporary and seasonal workers may also see other gains as the law will require that they be paid the same wage as their Full-Time counterparts if they are performing the same work, with some exceptions if the differences are based on seniority, merit, or certain other factors.

For employees whose work is subject to scheduling there are some significant new requirements regarding call-in, standby and shift cancellations.  This will under some circumstances of short notice, allow the employee to refuse the change or require at least three hours regular pay (some exceptions have now been added such as weather dependent work).  Vacation pay will increase to 6% and three weeks of vacation for all employees after 5 years of service.  There will be revised provisions for Public Holidays, including pay calculation.

There are amendments increasing the amount of leave available for family medical leave, child death or disappearance leaves and pregnancy/parental leave.  The Personal Emergency Leave is also being significantly amended by applying this to all workplaces, not just those with 50 or more employees and the first 2 days of the 10 days must be paid each year.  Employers will no longer be able to ask for a doctor’s note where an employee claims a personal illness or injury.  A new Domestic or Sexual Violence Leave will be created.  Pregnancy leave will be extended in some circumstances and Parental leave extended by a further 26 weeks beyond the current length.  These changes reflect extensions to the Employment Insurance benefits.

If you are a Temporary Help Agency, or use their staff, you should be aware that there are significant amendments to the use of these workers, including equality of pay compared to the regular employees, termination pay and other changes.

If you have a collective agreement, the changes to the ESA may in certain situations at prescribed times, override the collective agreement provisions.  As such, it is important to understand the impact on the collective agreement and to develop a bargaining strategy.

Another note of caution is where an employer has someone performing services for them as an “independent contractor”.  Too often this arrangement is not legitimate under the legal tests and the person will be found to be an employee.  This can lead to serious liability with CRA and other agencies.  Now, the ESA will be amended to allow the Ministry of Labour to prosecute employers who wrongly classify someone as an independent contractor and the onus will be on the employer to prove the person is a legitimate contractor.

There are other amendments contained in the Bill, including more Record Keeping requirements for various entitlements and provisions under the Act.

There will likely be further changes coming in  2017 when the government reviews the regulations to the Act, including the various exemptions, such as supervisors.  The Ministry has also indicated it is hiring over 175 new Employment Standards Officers to enforce the Act.  All of this means that if you are an employer you should review your employment practices sooner rather than later to ensure you are in compliance, before you face an audit or complaint with the Ministry of Labour.

Changes to the Labour Relations Act

In addition to the significant changes to the ESA, there are numerous changes to the Labour Relations Act  (“OLRA”) that should be of concern to employers, whether you are already unionized, or not and wish to stay that way.

The primary drive of these amendments is arguably to make it easier for unions to organize in Ontario.  Perhaps one of the most controversial aspects will be that the union can apply to the Labour Relations Board with only 20% support to have the employer forced to provide the union with a list of all the employees along with their personal phone and email information.  Presumably this will then make it extremely easy for the union to conduct it’s campaign.

For those employers working in the building services there are significant changes that would require a company who takes over a contract to inherit the union contract.  In addition, the rules about certification will go to a “Card Based” system by removing the requirement for the employees to vote if the union can show 55% membership support, as is currently the case in the construction industry.  This will also apply to Temporary Help Agencies and others.

The Board’s powers will also be increased regarding remedial measures where the union alleges the employer has breached the OLRA such as terminating employees during the organizing drive.  Although currently the Labour Board can reinstate and employee who appears to have been terminated due to union support, and it can also certify the union because of it regardless of the vote, these powers will be increased under Bill 148.

For those who become unionized the negotiation of the first contract can be sent to an arbitration, thereby avoiding any risk of a strike or lockout and allowing an arbitrator to set the terms of a collective agreement that will bind the employer.  The OLRB may also amend or combine other pre-existing bargaining units where there is certification of an additional bargaining unit.

Timelines for strike/lockouts and decertification applications will be extended to 45 days from the current 20 days after the “No Board Report” is issued by a conciliator.

Bill 148 will also require that, once a union is certified, an employee cannot be terminated unless there is just cause.  Presently this would only occur once the collective agreement was concluded.  For those situations where a strike does occur, the amendments provide greater protection to employees to be reinstated following the strike and providing protection and access to arbitration if they are disciplined for improper behaviour during the strike.

Conclusion

Given the broad and significant scope of these changes coming in the near future, all employers should review the details to understand how it may impact their business.

Stephen Goodwin is a partner in the Waterloo office of Hicks Morley and can be reached at Stephen-Goodwin@hicksmorley.com