In-Depth Analysis

Employers’ Advisor February 2018

Employers’ Advisor February 2018

 

Articles in the February 2018 edition:

    1. Fair Workplaces, Better Jobs? Ontario Employers Facing Significant Reforms to Employment Standards Act
    2. Accommodating Family Obligations: A Two-Way Street
    3. Bill 17: What Does It Mean for Alberta Employers

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Fair Workplaces, Better Jobs? Ontario Employers Facing Significant Reforms to Employment Standards Act

In 2017, the Ontario government introduced the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”) which amended, among other things, both the Employment Standards Act, 2000 (the “ESA”) and the Labour Relations Act, 1995.

Many of the changes to the ESA mandated by Bill 148 came into effect on January 1, 2018, while the effective date of other amendments are still forthcoming. This article provides an overview of the more significant changes to the ESA, along with implementation dates for those changes.

Minimum Wage

The amendments introduced by Bill 148 include increases to the standard minimum wage (previously $11.40 per hour) to $14 per hour as of January 1, 2018, and to $15 per hour as of January 1, 2019.  Afterwards, the minimum wage will automatically increase at the rate of inflation.

Equal Pay for Equal Work

As of April 1, 2018, the changes introduced by Bill 148 will prevent employers from making distinctions between employee wage rates based on differences in the “employment status” of employees. The stated purpose of this change is to ensure equal pay for equal work performed by casual, part-time and seasonal employees, as well as assignment employees employed through temporary help agencies.

Vacation and Public Holidays

Employees are entitled to three weeks’ vacation time and 6% vacation pay after five years of service with the same employer (rather than the previous universal minimum of two weeks’ vacation time and 4% vacation pay) as of January 1, 2018.

Effective January 1, 2018, Bill 148 has also amended the public holiday provisions of the ESA. The calculation of “public holiday pay” will now be based on the average daily wage from the employee’s pay period immediately preceding the public holiday, taking into account only the days the employee actually worked in that pay period. If an employee works on any public holiday, payment will equal public holiday pay, plus premium pay amounting to payment that is effectively a minimum of 1.5 times the employee’s usual rate.

Previously, the ESA required public holiday pay to be calculated in a manner that, in practice, meant that employees working less than full time received pro-rated holiday pay. The amendments will therefore significantly increase the amount employees receive in holiday pay.

Leave Entitlements

Bill 148 has resulted in increased employee entitlement to personal emergency leave (PEL). The changes to PEL, which came into force on January 1, 2018, include:

  • Eliminating the 50-employee threshold for PEL; and
  • Requiring that the first two days of the ten-day entitlement to PEL be paid leave.

Other changes to job-protected leaves available under the ESA include:

  • The introduction of leave provisions for victims of domestic or sexual violence, with the first five days of such leave to be paid, effective January 1, 2018; and
  • The expansion of Parental Leave from 35 weeks to 61 weeks where the employee takes Pregnancy Leave, and from 37 weeks to 63 weeks in other instances, effective December 3, 2017.

Doctor’s Notes

As of January 1, 2018, employers are prohibited from requiring an employee to provide a doctor’s note as proof the employee was entitled to take personal emergency leave due to illness.

Scheduling

Bill 148 introduces new obligations with respect to the scheduling of work, which will come into effect January 1, 2019. In particular:

  • Employers will be required to pay a minimum of three hours’ pay for shifts that are under three hours and where the employee was available to work longer, at the employee’s regular rate of pay;
  • Employees will be entitled to receive a minimum of three hours’ pay at their regular wage rate when an employee is on call but not called into work;
  • Employees will have the right to refuse employer requests that the employee work or be on call on a day that the employee is not scheduled to work or be on call if the employer provides the employee with less than 96 hours’ notice of such a scheduling request; and
  • Employees will be entitled to three hours’ pay at their regular wage rate in the event that an employer cancels a shift with less than 48 hours’ notice.

Employees will also be able to request changes to their schedule or work location, provided they have been employed for more than three months. Employers who receive these requests must discuss the request with the employee and either grant the request or provide reasons for a denial.

Concluding Remarks

There is no question that Bill 148 has significantly changed the legislative landscape for employers in Ontario. As outlined above, Bill 148 has increased the minimum wage by more than twenty per cent; will restrict the ability of employers to set different wage rates for employees; has increased entitlement to vacation pay and public holiday pay; expanded access to personal emergency leave; and will limit employer scheduling practices. As many of these changes are already in force, employers should review their workplace policies, procedures and employment contracts as soon as possible in order to ensure their continued compliance with the ESA.

Accommodating Family Obligations: A Two-Way Street

Family status accommodation continues to be a very difficult area of law that continues to evolve in a rapidly changing society. The case of Pascal Guilbault (Grievor) and Treasury Board (Department of National Defence) (Employer) serves as a recent example of what efforts an employer may be required to take when faced with an accommodation issue.

Pascal Guilbault was a civilian worker for the Department of National Defence whose spouse had health problems and whose two children had language and developmental difficulties. On that basis, he requested accommodation under the Canadian Human Rights Act and anti-discrimination portions of his workplace collective agreement. Specifically, he requested to be able to rearrange his work breaks so that they would fall at the end of his work day, allowing him to leave the workplace thirty minutes early. He stated that his wife took care of their four children on her own and that if he were able to arrive home thirty minutes early, it would greatly reduce the family tasks his spouse had to handle.

His employer rejected this request for operational and occupational health and safety reasons, but provided a number of alternatives for Mr. Guilbault to consider. The employer’s suggestions of a compressed work week, a variable schedule, starting and finishing earlier, and driving to work as opposed to taking public transportation were all rejected by Mr. Guilbault.

The arbitrator referred to the Johnstone v Canada (Border Services Agency) case in her decision. The Johnstone decision stated that in order to establish a prima facie case of discrimination on the ground of family status resulting from child care obligations, the individual advancing the claim must show all of the following:

  • A child is under his or her care and supervision;
  • The child care obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
  • He or she has made reasonable efforts to meet those child care obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
  • The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the child care obligation.

The arbitrator dismissed the grievance and found that Mr. Guilbault had not established a prima facie case of discrimination on the basis of family status. In so ruling, the arbitrator stated that, “family status as a prohibited ground is defined based on the parent’s legal obligation [towards his or her children] being hindered by a work rule of the employer. [In order for discrimination to exist] it must first be found that a legal obligation is being hindered.”

In this case, the arbitrator concluded that the employer did not hinder any of Mr. Guilbault’s legal obligations towards his children (or towards his spouse). His children were never left unattended while waiting for him to return home from work. While acknowledging that for health reasons it would have been beneficial for Mr. Guilbault to get home earlier to be able to relieve his wife, the arbitrator found that the “legal obligation threshold was not met in the grievor’s situation.”

In reaching this decision, the arbitrator emphasized that Mr. Guilbault did not fulfill his obligation to take reasonable efforts to meet his child care obligations through alternative means. Mr. Guilbault did not explore any alternative options for alleviating the pressure on his wife (such as seeking external help) other than leaving work thirty minutes early.

Finally, the arbitrator stated that even if there had been prima facie discrimination, the employer fulfilled its duty to accommodate by proposing multiple alternatives for Mr. Guilbault to consider, ultimately culminating in Mr. Guilbault being allowed to take his lunch at the end of his shift.  The fact that this solution was not implemented earlier was due to Mr. Guilbault’s refusal to consider the various options proposed by the employer.

In essence, the arbitrator confirmed that employees have an obligation to take steps to balance competing child care obligations (or other family obligations) and work commitments. Further, even if some accommodation is required, employers may suggest their own reasonable offers of accommodation and not just allow employees to insist upon their specific, preferred method of accommodation.

All work requirements necessarily create some degree of interference with parental obligations (or other family obligations).  The difficulty comes in assessing whether a particular work requirement creates such a degree of interference that it potentially amounts to discrimination on the basis of family status, and how best to respond in circumstances where some accommodation is necessary. This remains a developing area of law which employers will have to navigate with caution for the foreseeable future.

Bill 17: What Does It Mean for Alberta Employers?

Bill 17, the Fair and Family-Friendly Workplaces Act, is now in force in Alberta. The Bill has amended both the Alberta Labour Relations Code and Employment Standards Code, and affects both union and non-union employers alike.  Some of the key changes resulting from this Bill, and their practical implications for Alberta employers, are outlined below.

Job Protection for New and Longer Unpaid Leaves

Bill 17 now provides Alberta employees with some of the longest periods of unpaid job-protected leave in Canada and significantly reduces the minimum length of employment required before an employee becomes eligible for any such leave. As of January 1, 2018 (or later, if a workplace has a collective agreement in force as of January 1, 2018), employers are now required to recognize new categories of job-protected leave and extend the length of some categories of leave that existed previously. Employees are eligible for the statutory leaves of absence after a minimum of 90 days of employment, as compared to the previous requirement of 52 weeks of employment.

The new categories of job-protected leave established by Bill 17 are:

  • Long term illness and injury leave (up to 16 weeks per year);
  • Personal and family responsibility leave (up to 5 days per year);
  • Bereavement leave (up to 3 days per year);
  • Domestic violence leave (up to 10 days per year);
  • Citizenship ceremony leave (one half-day);
  • Leave to attend to the critical illness of a child (up to 36 weeks per year);
  • Leave to attend to the critical illness of an adult family member (up to 16 weeks per year); and
  • Leave in the event a child disappears or dies as a result of crime (up to 52 weeks or 104 weeks).

The following categories of leave have been extended in length:

  • Maternity leave (increased to 16 weeks per year; previously 15 weeks); and
  • Compassionate care leave (increased to 27 weeks per year; previously 8 weeks).

Simplified Processes for Union Certification

A major change to labour relations in Alberta pursuant to Bill 17 is the movement away from secret ballot representation voting for union certification to a card-based model. Pursuant to a change that became effective September 1, 2017, a union may now be certified with no requirement to hold a vote where more than 65% of employees in the proposed bargaining unit sign union cards. Secret ballot votes will only be held where support for the union, as indicated by signed cards, is between 40% and 65% – or, at the discretion of the Labour Relations Board, where the evidence suggests conflicting support. The Labour Relations Board may also automatically certify a union, without a vote, where an employer has committed an unfair labour practice.

Bill 17 has also extended the length of time that a union card, once signed, will constitute evidence of union support for the purposes of an application for union certification. A signed union card now remains valid for this purpose for up to 6 months (as compared to the previous 90 days), meaning that the period of time during which a union organizing drive may last has been extended significantly.

Legal Burden on Employers to Disprove Certain Alleged Unfair Labour Practices

Under Bill 17, an employer faced with allegations of certain types of unfair labour practices now bears the legal burden of proof to “disprove” the union’s complaint, rather than the onus falling on the union to prove that the alleged conduct did in fact occur. In other words, employers will be considered “guilty until proven innocent” where certain types of conduct are alleged. The reverse onus applies, for example, to complaints alleging that an employer sought to intimidate or threaten an employee to compel him or her from becoming or ceasing to be a union member. Employers should expect to see a greater number of these types of complaints filed with the Labour Relations Board as a result of this development.

Conclusions: What Should Alberta Employers Be Doing in Response to Bill 17?

With the myriad of changes made under Bill 17, employers may be wondering where to get started. The first step is to undertake a thorough review of existing workplace policies, employment contracts, and collective agreements to determine where you may already be in compliance with the newly legislated standards and where changes may need to be made.

Employers with a unionized workforce may wish to consider the impact of the new minimum requirements under Bill 17 on collective bargaining in the future. Whether unionized or not, employers may wish to educate managers and supervisors (or update previous training) on what constitutes an unfair labour practice and the potential impact of such complaints. While Bill 17 has created a sudden shift in Alberta’s labour and employment landscape, employers taking proactive steps to address changes and ensure compliance will be in the best position to minimize the disruption to their operations and their employees.

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact the authors, or any Mathews Dinsdale lawyer.

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