August 16, 2016

Make Your Voice Heard! Submissions on the Changing Workplace Review Interim Report

The Ontario government recently released the Changing Workplaces Review: Special Advisor’s Interim Report (the “Interim Report”).
The Changing Workplaces Review was commissioned to comprehensively review both Ontario’s Labour Relations Act, 1995 (the “LRA”) and Employment Standards Act, 2000 (the “ESA”) in response to the changing nature of employment relationships and the economy in the province.  In the first stage of the review, the Special Advisors, C. Michael Mitchell and John C. Murray, held 12 days of public hearings all over the province where they heard from organizations and individuals. The Special Advisors also accepted written submissions from interested parties.
In the Interim Report, the Special Advisors summarize the public submissions received thus far and outline possible options for reforming the LRA and the ESA. We have summarized some of the Interim Report’s most notable options for reform that may have an impact on your workplace.
Labour Relations Act, 1995
The LRA chapter of the Interim Report canvasses a wide-range of options for amending the existing labour relations scheme in Ontario. In doing so, it provides employer and union perspectives on discrete issues arising in the context of union certification applications and collective bargaining. While some of the issues and recommendations raised by labour advocacy groups, unions, and employer associations target individual provisions of the LRA, others focus on the general approach to labour organization and collective bargaining in Ontario.
Some of the noteworthy options articulated in the Interim Report include the following:

• broadening the LRA certification rights for agricultural and horticultural workers to bring this area of law into harmony with recent Supreme Court of Canada jurisprudence on the right to collectively bargain and the right to strike;
• expanding the related employer provision of the LRA by providing that the Ontario Labour Relations Board (the “OLRB”) may make a related employer declaration where an entity has the power to carry on associated or related activities with another entity under common control or direction, even if that power is not actually exercised;
• increasing access to unionization by re-establishing card-based certification outside the construction industry and introducing electronic membership evidence;
• empowering the OLRB to order interest arbitration as a remedy following a finding of bargaining in bad faith after the commencement of a strike or lock-out;
• establishing a less stringent test for remedial certification;
• extending the sale of business provisions to apply in cases of true contracting out;
• granting the OLRB power to consolidate or reconfigure bargaining units;
• introducing sectoral bargaining to increase access to collective bargaining for workers who have been largely excluded due to being difficult to organize;
• altering replacement worker provisions by either maintaining the current status of the statute, banning replacement workers, or introducing the CLC Model which allows replacement workers as long as it does not undermine a union’s representational capacity;
• expanding the power of the OLRB to make interim orders;
• providing all employees just cause protection from the moment of certification; and
• expanding the prosecutorial powers of the OLRB by giving it jurisdiction to impose administrative monetary penalties for violations of the LRA.

Employment Standards Act, 2000
The ESA chapter of the Interim Report outlines areas of the ESA that are being considered in the review for which the Special Advisors are seeking further input.
The options set out in the Interim Report address the scope of ESA application and all other substantive standards. A common theme amongst the options being considered apply to employees involved in non-standard employment relationships, such as contract work, part-time employment, self-employment, and temporary help agency employment. If these recommendations are adopted, they could result in significant changes to the application of the ESA to employers.
Some of the notable options for reform include:

• expanding the scope of coverage by including a “dependent contractor” as an employee;
• expanding the concept of “related employer” and “joint employer”;
• placing the burden on the employer to prove that an individual is not an employee in disputes regarding employment status;
• reviewing a small group of exemptions (note; employers who rely on any of the following exemptions should carefully review the Interim Report):
  • information technology professionals;
  • pharmacists;
  • managers and supervisors;
  • residential care workers;
  • residential building superintendents, janitors and caretakers;
  • special minimum wage rates for students under 18 and liquor servers; and
  • student exemption from the “three-hour rule”.
• eliminating the “intern/trainee” exemption for unpaid interns;
• reducing some of the pay restrictions, such as:
  • eliminating the need for Director’s approval for excess weekly hours between 48 and 60; and
  • reducing the overtime threshold from 44 to 40 hours per week.
• eliminating qualification criteria for holiday pay and increasing vacation entitlements;
• adding paid sick leave entitlements and new leaves of absence (for victims of abuse and death of a child);
• requiring notice of termination to be based on a cumulative period of employment as is the case with severance pay;
• eliminating severance pay thresholds and introducing a “just cause” protection for non-union employees;
• various options regarding equal pay and benefits for temporary and part-time employees;
• reviewing the provisions applying to employees of temporary help agencies (note; if your business uses temporary help agency employees, careful attention should be paid to the Interim Report);
• special contexts in which written agreements can be used to vary specific standards within limited parameters;
• requiring an employers pay period to align with its “work week”;
• other reform options include enforcement, administration, and compliance mechanisms to address some of the current enforcement problems. The report suggests:
  • introducing procedures for anonymous and third party complaints;
  • eliminating the requirement for individuals to approach employers before filing a complaint for an ESA violation; and
  • increasing monetary penalties for violations.

Next Steps
The potential changes to the LRA and ESA outlined in the Interim Report are wide-ranging and may have a significant impact on your business. However, the Ontario Government has said that employers will have an opportunity to participate in the discussion and shape the outcome of the Review.
If you would like to discuss the Interim Report and the implications that the recommendations may have on your business, please contact a Mathews Dinsdale lawyer.
Submissions on the options for recommendations outlined in the Interim Report must be made before October 14, 2016. For this purpose, the following contact information has been provided:
Email:
CWR.SpecialAdvisors@ontario.ca
Mail:   
Changing Workplaces Review, ELCPB
400 University Ave., 12th Floor
Toronto, Ontario M7A 1T7
Fax:   
416-326-7650
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
For more information on new developments in Workplace Law, please refer to our website at:  https://mathewsdinsdale.com/news-events/in-a-flash/
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