May 30, 2017

Ontario Moves Quickly to Overhaul Workplace Laws

The ink is barely dry on the Final Report of the Changing Workplaces Review, and the Ontario Government has already taken the next step to revamp Ontario’s workplace laws.  The Ontario Government announced today an intention to introduce a new Bill, to be known colloquially as The Fair Workplaces, Better Jobs Act, 2017.  The proposed new Bill was not yet available at the time this article was prepared.
The proposed new Bill contains extensive amendments to both the Employment Standards Act, 2000 (“ESA”) and the Labour Relations Act, 1999 (“LRA”), stemming from the recommendations contained in the Final Report, released last Tuesday, discussed in more detail here.  The proposed new Bill, while not yet law, is expected to pass quickly.  Once passed, most of the amendments are projected to come into force either by January 1, 2018 or within six (6) months of the date the Act comes into force.
This is a significant development with far-reaching cost and operational implications for provincially-regulated employers in Ontario.  Some of the more notable proposed changes are set out below.
EMPLOYMENT STANDARDS
The following highlights the proposed changes to be made to the ESA:

• Minimum wage to increase as follows:
  • General $11.60 (Oct 1/17); $14.00 (Jan 1/18); $15.00 (Jan 1/19)
  • Students $10.90 (Oct 1/17); $13.15 (Jan 1/18); $14.10 (Jan 1/19)
  • Liquor servers $10.10 (Oct 1/17); $12.20 (Jan 1/18); $13.05 (Jan 1/19)
• Subject to some exceptions, casual, part-time, temporary and seasonal employees will be required to be paid at the same rate as full time employees
• Right to request a review of their wages with a corresponding obligation on the employer to respond in writing
• Temporary help agency workers on assignments greater than 3 months will be entitled to a minimum of 1 week notice of termination, unless provided with an alternate offer of reasonable assignment is made
• Right to request scheduling or location changes after 3 months of employment
• Minimum 3 hours pay at regular rate of pay for any employee who:
  • Regularly works more than 3 hours and is given less than 3 hours of work;
  • Is “on-call” but not called into work; or
  • Has a shift cancelled by employer on less than 48-hours’ notice
• Ability to refuse shifts which are offered on less than 4 days’ notice
• Rebuttable presumption that workers are employees, with penalties to be levied against employers for misclassifying employees as independent contractors
• Increase paid vacation entitlement to 3 weeks after 5 years of service
• Simplification of the calculation for calculating public holiday pay
• Eliminate current 50 employee threshold for Personal Emergency Leave (“PEL”)
• All employees to be entitled to 10 days’ PEL, 2 of which must be paid
• Employer prohibited from requesting doctor’s note for employee taking PEL day

As many of these issues may currently be specifically addressed in written employment contracts and/or company policy documents, steps should be taken to review and revisit these documents well in advance of the effective date of change.  In some circumstances, it may be necessary (or at least prudent) to require employees to execute new agreements, though caution must be taken to ensure any new agreements are properly executed in a manner which will ensure their enforceability.
LABOUR RELATIONS
The following highlights the proposed changes to be made to the LRA:

• Establish card-based certification for the following:
  • Temporary help agency industry
  • Building services sector
  • Home care and community services industry
• Make automatic certification easier in the event of an unfair labour practice
• Improve access to first contract arbitration
• Introduce intensive mediation to the first contract process
• Require the Ontario Labour Relations Board (“OLRB”) to prioritize dealing with first contract mediation-arbitration applications over displacement and decertification applications
• Provide union access to employee lists and certain contact information where the union is able to demonstrate 20% employee support
• Empower the OLRB to conduct votes outside of the workplace (including electronic and phone voting) and authorize Labour Relations Officers (“LROs”) to give directions relating to the voting process to ensure neutrality
• Extend successor rights to retendering of building services contracts, with additional regulatory powers to extend successor rights to retendering of other publicly-funded contracted services
• Empower the OLRB to restructure existing bargaining units where the existing bargaining units are considered “no longer appropriate” for collective bargaining and/or consolidate new bargaining units with existing units under a single employer
• Remove the 6-month limitation on the employee right to return to work after the start of a lawful strike
• Require employee reinstatement at the conclusion of a legal strike or lockout and provide access to grievance arbitration in these circumstances to enforce the obligation
• Introduce just cause protection for employee discipline or discharge between:
  • Date of certification and the conclusion of a first contract; and
  • Date the employees are in a legal strike or lockout position and the new collective agreement
• Increase maximum fines under the Act to $5,000 for individuals and $100,000 for organizations (up from $2,000 for individuals and $25,000 for organizations)

If the proposed legislation is passed, all labour relations proposals would be in effect six months after the Act comes into force.
The Ontario Government has also announced plans to hire up to 175 more employment standards officers (“ESOs”) and launch new programs to improve education to employees and small to medium-sized business about rights and obligations under the ESA. The Government is targeting that by 2020-2021, the employment standards program will resolve all claims filed within 90 days and inspecting 10% of Ontario workplaces.
It is important to underscore that none of the changes have actually been passed into law, so it remains to be seen which changes will ultimately be adopted and implemented by the Government.  However, anticipating that many of the recommendations may be adopted, it would be prudent to ensure existing practices and procedures are updated, as appropriate, to minimize unintended breaches when any changes take effect, while ensuring stability and predictability for existing arrangements.
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.
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