When former Ontario Premier Kathleen Wynne’s Liberal government tabled and eventually passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017, employers were stunned by the scope of the employment standards changes contained in the legislation.
The bill would not only increase the minimum wage by 30 per cent in just two years. The sweeping package of labour and employment law amendments would provide employees with up to 10 personal emergency leave days each year—two of which would be paid by their employer—and impose dramatic restrictions on organizations’ ability to schedule employees, a change felt most acutely in sectors such as hospitality where on-call shifts are a vital tool to help maintain profitability in an industry with notoriously tight margins.
It didn’t end there. Bill 148 also placed a reverse onus on employers who were forced to prove that their employees were, in fact, contractors if the worker’s employment status was challenged by the Ministry of Labour. Equal pay for equal work, holiday entitlements and measures allowing simplified unionization were additional provisions that left employers struggling to compete and succeed. While entrepreneurs were sympathetic to the idea of providing worker protections, they wondered why the government of the day was so intent on imposing what they deemed to be draconian rules and regulations at a time when many organizations were struggling to make ends meet.
Relief came last week with the tabling of Bill 47, the proposed Making Ontario Open for Business Act (reports indicate that the incoming Pay Transparency Act will also be delayed and amended). The new Progressive Conservative government had promised during the recent Ontario election to do away with some of Bill 148, but the extent of those planned amendments remained unclear—until now. If passed in its current form, Bill 47 would repeal or rollback almost all of the most significant changes to the Employment Standards Act (ESA) and the Labour Relations Act (LRA) introduced under Bill 148, including:
Minimum Wage—Rather than increasing again to $15 on January 1, 2019, the minimum wage would be frozen at $14. Future increases would then be pegged to inflation starting in 2020.
Scheduling—The New Year was to usher in a raft of new scheduling provisions including giving employees the right to change schedules or work locations after three months on the job, the right to refuse requests to work on days off or to be on-call without first receiving 96 hours’ notice, an automatic three-hours’ pay if a regular shift or on-call shift was cancelled without 48 hours’ notice and three hours’ pay for on-call shifts if the employee was not called in to work or worked less than three hours. These measures would be fully repealed with the passage of Bill 47. The ‘three-hour rule’ would be modified to provide employees with three hours of pay at their regular rate if they report to work, but work fewer than three hours.
Personal Emergency Leave—The 10 PEL days would be fully repealed and replaced with up to three days for sickness, two for bereavement and three for family responsibilities, none of which would be paid. Employees would continue to receive three weeks of paid vacation after working for the same employer for five years (one of the few Bill 148 measures the new legislation would retain). In addition, employers would once again be allowed to request doctor’s notes to confirm employee illnesses.
Employee misclassification—Employers would no longer be required to satisfy the egregious reverse onus requirement to prove their employees are not employees if, for example, it’s suspected that an organization is attempting to misclassify employees (as defined under the ESA) as contractors to sidestep employer contributions to EI, CPP, provide holiday pay or other employment standards guarantees.
Equal Pay for Equal Work—Employees would no longer be guaranteed equal pay for equal work on the basis of employment status, meaning that part-time, casual and temporary workers—as well as employees hired from temporary help agencies—could once again receive different rates of pay than full-time employees.
Unionization—Bill 47 would repeal new laws that made it easier to unionize including requiring card-based certification for workers in industries such as building services and home care, requiring organizations to provide employee lists to unions during unionization drives, and reinstating the six-month limitation “on an employee’s right to reinstatement following the start of a strike or lock-out.” In addition, maximum fines for LRA offences would be rolled back to $2,000 from $5,000 for individuals, and to $25,000 from $100,000 for organizations.
While most employers will cheer these changes, we can all share the same bemusement in having to amend our employee policy manuals for a second time in less than a year. Still, these amendments represent a positive step forward for organizations in the province, maintaining some important protections for employees, while aiding organizational competitiveness and helping our collective bottom lines at a time when turning a profit is more challenging than ever.
George Grignano, Partner