May 24, 2017

Sweeping Changes to Workplace Laws Proposed in Ontario

The Ministry of Labour has just released The Changing Workplaces Review Final Report (the “Final Report”).  As previously reported, the Changing Workplaces Review was commissioned to comprehensively review some of the core legislation in Ontario affecting workplaces, including the Employment Standards Act, 2000 (“ESA”) and the Labour Relations Act, 1995 (“LRA”).
The 420-page Final Report, released yesterday, contains nearly 200 recommendations to significantly overhaul workplace laws in Ontario.  Some of the more notable highlights include:
GENERAL

1. Consolidating the three (3) core workplace statutes (ESA, LRA and the Occupational Health and Safety Act (“OHSA”)) into a single “Workplace Rights Act”;
2. Allocating additional Ministry resources to proactive enforcement (e.g. spot checks, audits and inspections) and education (e.g. incorporating ESA education into high school curriculum);
3. Increasing the scope of inspector powers, including requiring that Ministry inspectors and officials report any violation of labour legislation that comes to their attention and assessing whether the investigation of an individual complaint should be expanded where it appears the problem of non-compliance may affect other employees;
4. Ensuring Ministry investigations prioritize alleged incidents of reprisal and complaints that will likely lead to an expanded investigation into the workplace; and,
5. Expanding the remedial jurisdiction of the Ontario Labour Relations Board (the “Board”), including the power to impose administrative monetary penalties of up to $100,000 per infraction.

EMPLOYMENT STANDARDS

6. Making directors of a corporation personally responsible for up to six (6) months’ wages and up to twelve (12) months’ vacation pay, with the only condition to be met by an employee is for the employee to demonstrate the amounts have not been paid by the corporation;
7. Eliminating the minimum wage rate for students under 18-years of age and liquor servers;
8. Modifying the current test for the manager and supervisor exemption from overtime to include a “salaries plus duties” test requiring a manager to perform certain defined duties and be paid a salary at a rate of at least 150% of the general minimum wage;
9. Subject to some exceptions, requiring part-time, casual, temporary and seasonal employees to be paid at the same rate as comparable full-time employees;
10. Granting the Ministry the authority to regulate the scheduling of employees by employers, particularly within certain sectors, such as fast food and retail;
11. Giving employees with at least one (1) year of service the right to request an increase or decrease in hours, a more flexible work schedule, or an alternate work location, with a corresponding obligation on the employer to respond to any such request;
12. Improving compensation, job access and termination entitlements for temporary help agency workers;
13. Eliminating the current requirement to obtain Ministry consent to work 48 to 60 hours a week;
14. Requiring employers to pay for any doctor’s note requested by the employer;
15. Increasing minimum vacation pay entitlements to three (3) weeks (at least 6%) after five (5) years of service; and,

Expanding the definition of “employee” under the ESA to include dependent contractors, and placing the burden on the employer to demonstrate that the person is not covered by the ESA.
Further insight and commentary into the potential implications that some of these more notable ESA recommended changes may have on your organization can be found here.
LABOUR RELATIONS

17. Removing the statutory exemption from the LRA for certain historically excluded workers, and granting improved bargaining rights to agricultural and horticultural workers, domestic workers, and various professionals, among others;
18. Requiring automatic certification under s. 11 of the LRA and making first contract arbitration available where an employer acts in such a way as to make it unlikely that the true intentions of employees can be ascertained;
19. Restricting the time periods in which an application for decertification can be brought where automatic certification occurs under s. 11 of the LRA;
20. Enabling an “intensive mediation” approach to first contracts, similar to the scheme presently available in British Columbia;
21. Giving a union access to employee lists and contact information where the union can demonstrate support of approximately 20% of the employees in a bargaining unit;
22. Allocating resources to modernize the electronic submission of information to the Board, including a modernization of the rules permitting electronic membership evidence;
23. Permitting electronic voting (including telephone and internet voting); and,
24. Developing a model where bargaining units of different franchisees of the same franchisor may be required to bargain centrally.

Further insight and commentary into the potential implications that some of these more notable LRA recommended changes may have on your organization can be found here.
A summary version of the Final Report (56 pages) or the full version of the Final Report (420 pages) can be found here.  Please refer to recommendations 1 to 129 for the recommended amendments to the ESA, and recommendations 130 to 171 for those potentially affecting the LRA.
None of the recommended changes have actually been passed into law, so it remains to be seen which changes will ultimately be adopted and implemented by the Government.
Given that the Final Report has only just been released, please stay tuned for a more detailed review of some of the key recommended changes.  In the interim, if you have any questions about the potential implications of these proposed recommendations on your organizations, or any other questions relating to this topic or workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
Click here for downloadable version.