Overview

On Nov. 22, 2017, the Government of Ontario passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017 (Bill 148). Bill 148 made significant amendments to Ontario’s Employment Standards Act, 2000 (ESA) and Labour Relations Act, 1995 (LRA). Among other changes, Bill 148 raised the minimum wage, mandated equal pay for part-time, temporary, casual and seasonal employees doing the same job as full-time employees, and expanded job-protected leaves for employees throughout the province.

However, on Oct. 23, 2018, the Ontario government—under a new regime—introduced Bill 47, Making Ontario Open for Business Act, 2018 (Bill 47), which would repeal many of the changes established by Bill 148. The government hopes that, by removing certain statutory obligations of Bill 148, Bill 47 will reduce the burden on employers and bring jobs back to Ontario.

Amendments Proposed by Bill 47

If passed, Bill 47 will enact the following changes to the ESA and LRA, undoing much of Bill 148:

ESA

• Minimum wage—Minimum wage will remain at $14.00 per hour, at least until October 2020. From there, any increases will be tied to inflation.
• Scheduling—Bill 47 would repeal most of the scheduling provisions found in Bill 148 that were planned to come into force Jan. 1, 2019. Specifically, Bill 47 would repeal the right:
  • To request changes to schedules or work locations after an employee has been employed for at least three months
  • To receive a minimum of three hours’ pay for being on-call, particularly if the employee is available to work but is not called in to work
  • To refuse requests or demands to work or to be on-call, specifically on days an employee is not scheduled to work or to be on-call with less than 96 hours’ notice
  • To receive three hours’ pay if a scheduled shift or an on-call shift is cancelled within 48 hours before the shift was to begin
• Personal emergency leave—Bill 47 would replace current personal emergency leave entitlements with a package of eight unpaid annual leave days. These days are broken down as follows:
  • Three unpaid days for personal illness
  • Two unpaid bereavement leave days
  • Three unpaid days for family responsibilities
• Misclassification—Under Bill 148, a reverse onus was placed on employers during disputes over employment classification. This meant that it was up to employers to prove whether an individual was an employee or an independent contractor during any given dispute. Bill 47 would eliminate that onus for employers, instead shifting the burden of proof to the individual.
• Equal pay for equal work—Bill 47 would eliminate the equal pay provisions of the ESA that give part-time, casual, temporary and assignment employee status workers (temporary help agency status) the same entitlements as full-time, permanent workers. This would effectively remove the definition of “difference in employment status” from the ESA.
• Penalties for contravention—Bill 47 would reduce maximum administrative penalties for violations of the ESA from $350/$700/$1,500 to $250/$500/$1,000, respectively.

LRA

• Card-based certification—Bill 47 would give workers the right to vote via a secret ballot by repealing card-based certification on workers in home care, building services and temporary help agencies.
• Employee lists—Bill 47 would repeal rules that require employers to share their employees’ personal information to unions.
• Remedial certification—Bill 47 would reinstate pre-Bill 148 test and preconditions for the Ontario Labour Relations Board (OLRB) to certify a union as remedy for employer misconduct. The OLRB would also be required to determine whether a vote or new vote would be a sufficient remedy, or whether certification of the union would be the only sufficient remedy.
• Successor rights—Under Bill 47 changes, successor rights in contract tendering for publicly funded services would no longer apply.
• Structure of bargaining units—Bill 47 would repeal the power of the OLRB to review and consolidate newly certified bargaining units with existing bargaining units. Under the new rules, the OLRB would instead be empowered to review the structure of bargaining units where the existing bargaining units are no longer appropriate for collective bargaining.
• Return-to-work rights—Bill 47 would change return-to-work rights back to what they were prior to Bill 148. Specifically, an employee’s right to reinstatement following the start of a strike or lockout would be reduced to six months.
• First collective agreements/mediation and mediation-arbitration—The mediation, mediation-arbitration and educational-support provisions relating to first collective agreements would be repealed under Bill 47. Instead, pre-Bill 148 conditions related to the access of first agreement arbitration would be implemented.
• Fines—Bill 47 would reinstate previous maximum fines for offences under the LRA. As a result, fines would decrease from $5,000 to $2,000 for individuals and $100,000 to $25,000 for organizations.

What this Means for Employers

For the time being, employers should wait to update their policies and practices to reflect the changes proposed by Bill 47. Even if Bill 47 comes into force, employers are advised to seek the help of legal counsel before altering workplace practices.

To read the proposed changes in full, click here.

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