In-Depth Analysis

Employers’ Advisor December 2018

Articles:

  1. Ontario is Open for Business
  2. Brace Yourself, BC Employers – More Workplace Changes Ahead
  3. Government Plans Significant Amendments to Federal Labour Standards

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Ontario is Open for Business

On November 21, 2018, the Ontario provincial government passed the Making Ontario Open for Business Act (also known as “Bill 47”), significantly altering the landscape for employers throughout the Province.

The Bill comes as a welcome change for employers, as it reverses many of the micromanaging and burdensome changes to Ontario’s labour and employment laws that were previously implemented pursuant to the Wynne Liberal government’s unpopular Bill 148.

When the Changes Will Take Effect

The changes made to the ESA by Bill 47 will come into effect on January 1, 2019. This means that employers must act quickly to ready themselves and their workplaces for the new changes.

Minimum Wage Frozen at $14

The minimum wage in Ontario will be frozen until at least October 1, 2020 at $14.00 per hour for the majority of workers. Following October 1, 2020, changes to the minimum wage will be made on an annual basis and tied to the rate of inflation.

No Paid Personal Emergency Leave

The section of the ESA providing for ten personal emergency leave days, including the language regarding two day paid personal emergency leave days introduced by Bill 148, has been repealed in its entirety.

Instead of the now-eliminated personal emergency leave days, Bill 47 introduces a suite of new, unpaid specific type of leaves. These are:

  • Three days of Sick Leave in each calendar year for “personal illness, injury, or medical emergency.”
  • Three days of Family Responsibility Leave in each calendar year for an illness, injury, medical emergency or urgent matter concerning certain family members.
  • Two days of Bereavement Leave in each calendar year for the death of certain family members.

Employers Entitled to Reasonable Evidence

Employers will be able to require that employees, who make use of their leave entitlements under the ESA, provide “evidence reasonable in the circumstances” to prove that the employee is entitled to the leave. Notably, employers will once again be permitted to require employees to provide a medical note as evidence establishing their entitlement to sick leave.

Public Holiday Pay

Bill 47 reinstitutes the public holiday pay formula that existed prior to Bill 148, meaning that public holiday pay will be determined by calculating the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20.

Scheduling Provisions

Bill 47 repeals the onerous scheduling provisions of Bill 148, which entitled an employee to:

  • Request changes to their work schedule or location after being employed for at least three months;
  • Receive a minimum of three hours’ pay for being on-call if the employee is available to work but is not called in to work, or works less than three hours;
  • Refuse requests to work or to be on-call if the employee is given less than 96 hours’ notice of the request; and
  • Receive three hours’ pay if a scheduled shift or an on-call shift is cancelled within 48 hours before the shift was to begin.

Bill 47 contains a modified “three hour rule” which entitles an employee who a) regularly works more than three hours per day, b) is required to report to work, but c) works less than three hours despite being available to work longer, to be paid for a full three hours.

Note that the “three hour rule” will not apply if the reason for the lack of work is beyond the employer’s control, such as dangerous weather or power failure.

Equal Pay for Equal Work

Employers will once again be able to differentiate employees’ pay on the basis of employment status (for example, full-time versus part-time employees) and assignment employee status (in other words, direct employees versus temporary help agency employees).

What Hasn’t Changed

Not all changes to the ESA brought in by Bill 148 were repealed or amended. For example:

  • Vacation – Bill 148’s increased paid vacation entitlements of three weeks and 6% vacation pay after five years of service will remain in effect.
  • Bill 148’s new or increased entitlements to Pregnancy Leave, Parental Leave, Family Medical Leave, Critical Illness Leave, Death or Disappearance of Child Leave and Domestic or Sexual Violence Leave will remain in effect.

The legal landscape for employers in Ontario has shifted significantly over the past two years. These most recent changes provide an excellent opportunity for employers to review their internal policies and practices to ensure they are consistent with Ontario’s recently amended employment legislation.

Brace Yourselves, BC Employers – More Workplace Changes Ahead

Employers in British Columbia have been anticipating changes to the Labour Relations Code and the Human Rights Code based on announcements made by the newly formed NDP/Green Coalition government earlier this year. While no key changes have been passed into law yet, we now have a clear indication of the provincial government’s priorities for changes we are likely to see implemented in the near future.

Labour Relations Code

The BC Labour Relations Code Review Panel, appointed by the Minster of Labour, released its report on October 25, 2018, making 29 recommendations for amendments to the Labour Relations Code.

The following summarizes some of the Review Panel’s most noteworthy recommendations and, if the recommendations are ultimately made into law, their potential impact for BC employers.

1. Allowing union membership cards to remain valid for a period of 6 months, instead of 90 days. This recommended change would allow signed union cards to remain valid for a full six months, even if during that time period an employee who signed a card changed their mind about wishing to be represented by a union. This will no doubt increase the duration of union organizing drives and the tensions that may be associated with them.

2. Placing significantly greater restrictions on employer communication during an organizing drive or certification application. Currently, employers enjoy free speech rights permitting the expression of views on union representation, provided they do not act in a coercive or intimidating manner. The recommended change would prevent employers from expressing virtually any negative views about unions or unionization.

3. Retaining the secret ballot vote in the certification process. This recommendation came as a surprise. BC had card-based certification under a previous NDP Government (from 1993 to 2001). Alberta has recently shifted to a card-based certification model. Many expected BC to follow suit and re-institute card-based certification.

The distinction between vote-based and card-based certification is significant. The secret ballot vote is the fairest and most accurate way to determine employees’ wishes and ensure that union representation is truly a matter of employee choice. The requirement to objectively verify employees’ wishes through voting is considered an essential safeguard in the process of certification.

Employers should still anticipate the possibility of a return to card-based certification in BC, as the current NDP Government may reject the Panel’s recommendation on this point. The Panel’s recommendations are not binding, and, importantly, one member of the Panel dissented from this recommendation and endorsed card-based certification.

4. Enabling the Labour Relations Board to require an employer to provide a list of employees (and their personal contact information) when an application for certification is filed. Employee support for the filed application does not appear to be a prerequisite for access to such a list.

5. Applying the successorship provisions of the Labour Relations Code whenever contracts change hands in certain industries. This would mean the new contractor would be bound by the previous contractor’s union certification and collective agreement. The building cleaning, security, bus transportation, and healthcare industries would all be affected by this change.

The full report of the Panel, outlining all 29 recommendations and the specific proposed amendments to the Code, can be found here.

Human Rights Code

Bill 50, introduced on November 1, 2018, proposes a number of amendments to the Human Rights Code.

Most significantly, Bill 50 sets out the framework for the reinstatement of the BC Human Rights Commission, which was previously dismantled in 2002. The new Human Rights Commissioner would be tasked with the promotion and protection of human rights in BC, and would enjoy a disconcertingly wide range of powers. In particular, the Commissioner would be able to intervene in any human rights complaint filed with the Tribunal and would also be able to conduct public inquiries into any matters which “promote or protect human rights”. The Commissioner would also have the power to inspect workplaces or property even in the absence of a complaint being filed with the Tribunal.

Bill 50 also proposes extending the time limits for filing a human rights complaint to one year following the alleged act of discrimination, instead of the current 6-month time limit. This will make it more difficult for employers to properly investigate allegations against them and defend themselves from a complaint.

Bill 50 has already passed second reading as of November 8, 2018 and is expected to be passed into law without any significant changes to its provisions. The full text of Bill 50 is available here.

Conclusions

The legal framework within which BC employers manage their relationships with employees is changing. Employers should review their internal polices, practices and contracts to ensure compliance with current laws and to identify areas where there may be the need for change down the road. It is also a good time to assess employee relations in a broader sense, and to consider how management is addressing employee concerns. We will continue to report on the ongoing proposed and anticipated changes to workplace laws in BC.

Government Plans Significant Amendments to Federal Labour Standards

The Federal Government recently introduced Bill C-86, the Budget Implementation Act, 2018. The Bill, which applies to federally regulated employers (who we simply refer to as “employers” in this article), will have a significant impact on labour standards under the Canada Labour Code (the “Code”).

If the Bill passes, some of the most significant new provisions and proposed changes will include the following:

Meal Breaks and Rest Periods

Employers will be required to provide an unpaid break of at least 30 minutes during every period of 5 consecutive hours of work, with certain exceptions. Further, the amendments provide for a rest period of at least 8 consecutive hours between work periods or shifts, with certain exceptions.

Scheduling

Employers will be required to provide employees with their work schedule in writing at least 96 hours before the start of the first shift under that schedule. Where 96 hours of notice is not given, employees will be entitled to refuse work starting within 96 hours from the time that the schedule is provided, subject to certain exceptions such as conflicting terms in a collective agreement. Employers will also be prohibited from reprising against employees for such refusals.

Breaks for Medical Reasons

Employees will be provided with unpaid breaks that are necessary for medical reasons. Employees will also be entitled to any breaks necessary to nurse or express breast milk.

Leaves of Absence

The Bill will eliminate service requirements for parental leave, maternity leave, leave related to critical illness, and leave related to death or disappearance. The Bill also introduces several new leaves:

  • Leave for Victims of Family Violence – up to 5 days of paid leave each calendar year, after 3 months of continuous employment;
  • Leave for Court or Jury Duty;
  • Medical Leave – the current sick leave provisions will be converted to medical leave, which will encompass up to 17 weeks of absence as a result of personal illness or injury, organ or tissue donation, or medical appointments during working hours;
  • Personal Leave – up to 5 days each calendar year, which includes 3 paid days, for reasons related to personal illness, the carrying out of responsibilities related to the health or other urgent matters of family members, reasons related to the education of family members under 18, in order to attend citizenship ceremonies, and for any other reason prescribed by regulation.

Parental Leave

A new parental sharing benefit has been introduced. The amount of leave which may be taken will be increased by up to 8 weeks, if that leave is divided among two parents.

Termination of Employment

Currently, the Code requires a minimum of 2 weeks’ notice of termination in instances of individual termination of employment. The Bill introduces new notice requirements wherein employees will be entitled to expanded notice or wages in lieu of notice after each year of completed employment. After 3 years of employment, employees will be entitled to 3 weeks of notice, and so on, up to a maximum of 8 weeks of notice after 8 years of consecutive employment.

Vacation

Employees who complete 10 consecutive years of employment with the same employer will be entitled to 4 weeks of vacation. In order to receive 3 weeks of vacation, employees will only be required to have completed 5 years of consecutive employment with the same employer, decreased from the current 6 year threshold. Employees who have completed 5 consecutive years of employment will be entitled to 6 per cent vacation pay, and employees who have completed 10 consecutive years of employment will be entitled to 8 per cent vacation pay.

Holiday Pay

Minimum length of service requirements for holiday pay will be eliminated. Currently, employees are not entitled to holiday pay for a general holiday that occurs in their first 30 days of employment with an employer.

Reimbursements

There will be new provisions that require employers to reimburse employees for reasonable work-related expenses.

Equal Pay

Employers will be prohibited from paying employees different rates of pay because of their “employment status” (i.e. full-time vs. part-time, temporary, etc.), where the employees are performing substantially the same kind of work in the same establishment. This is subject to certain exceptions, including seniority, merit, and the quantity or quality of production. Similar provisions also require employees of temporary help agencies to be paid equal pay for work performed by the employees of a client.

Temporary Help Agencies

The Bill introduces a number of other provisions with respect to temporary help agencies. Such agencies will be prohibited from charging fees to assignment employees, charging fees to clients for establishing an employment relationship with employees in certain instances, and from preventing employees from establishing an employment relationship with a client. Should such fees be levied, the agency will be required to reimburse that fee.

The proposed Bill is not yet law. The Bill must still proceed through the legislative process. Stay tuned for further updates.

If you have any questions regarding the impact of these potential changes to federal workplace laws, please do not hesitate to contact a Mathews Dinsdale lawyer.

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact a Mathews Dinsdale lawyer for assistance.

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