Big changes coming

Bill 148: Labour law in Ontario
By David Alli

David Alli

At this point, many of us have heard about the increases to the minimum wage that will be taking effect across the province of Ontario. This change is part of the “Fair Workplaces, Better Jobs Act,” also known as Bill 148, which is intended to update workplace laws across Ontario. Further, the increase to the minimum wage is only one small part of many other aspects of the employment landscape that will be changed.

At the time of writing this article, Bill 148 has not yet received Royal Assent into law, but despite the scrutiny it must still withstand, many of the items covered below are expected to form a part of the final version. The Fair Workplace, Better Job Act would make significant changes to the Employment Standards Act and the Labour Relations Act, which will have a major impact on your business operations. Accordingly, we will discuss some of the major changes expected to take effect between January 1, 2018 and January 1, 2019.

Firstly, Bill 148 will have a significant impact on the minimum wage by increasing it from $11.40 to $14.00 per hour on January 1, 2018, and then $15.00 per hour on January 1, 2019. While this may leave business owners very concerned, there will be wage exemptions for specific classes of workers, including servers and students.

Protection for part-timers

The principle of “equal pay for equal work” will be enshrined within Bill 148 as employers will no longer be able to pay workers differently based on employment status (i.e. full-time, part time, casual, temporary and seasonal). Typically, employers will pay their non-full time staff at a different rate compared to others. With these changes, all employees regardless of status, will have to be paid the same if they are doing  similar work. However, factors such as seniority and merit can be used to justify a difference in wage amount paid to specific employees.

The legislation also aims to reduce unpredictable work schedules as the same has been recognized to have a negative impact on employees. The employer will be required to provide three hours’ pay if a shift is cancelled within 48 hours of its start time. Further, this will apply to employees who are on-call and have their status cancelled within that time period.

However, the three-hour penalty will not apply where the cancellation is due to reasons beyond the employer’s control (i.e. weather conditions). Additionally, after three  months of employment, an employee will be able to request both a schedule and location change without any repercussion. In some cases, collective agreements that are currently in place within the work environment will take precedent over the new provisions.

There are currently discussions regarding exemptions for certain jobs with respect to overtime payments and other aspects of the Employment Standards Act; namely, architects, domestic workers, managerial and supervisory employees, pharmacists, and residential building superintendents and caretakers.

Currently, employees are entitled to a minimum of two weeks off and four percent vacation pay. Bill 148 will increase these minimums for employees with five or more years of service to three weeks per year with vacation pay at six percent.

Enhanced emergency leave

There are also changes with regards to personal emergency leave that will be introduced. Bill 148 will maintain the current entitlement to 10 days of personal emergency leave, but will require that two of those days be paid leave. Currently, personal emergency leave is only available in workplaces with 50 or more employees, but the new Bill will eliminate this threshold and allow application to all workplaces across Ontario. Employers can ask for a doctor’s note in connection to the employee’s personal leave, but they cannot require the employee to produce a note.

Further, an employee with at least six months of service will be entitled to unpaid leave for up to 104 weeks in the event of a child death or crime-related disappearance of a child. Additionally, employees with at least 13 weeks of employment who are victims of sexual or domestic violence will be entitled to unpaid leave for up to 15 weeks. In these cases, the employer can request reasonable evidence and must be given advanced notice by the employee.

Other changes include increasing the entitlement under family medical leave from eight weeks of unpaid leave in a 26-week period to a maximum of 27 weeks of unpaid leave in a 52-week period. Other increases have also been made to pregnancy and parental leave entitlements. The current six weeks of leave applicable to employees who suffer stillbirths or miscarriages will be increased to 12 weeks. Also, 26 additional weeks will be added to the length of parental leave.

Currently, employers utilize independent contractors for a variety of reasons. Generally, an independent contractor is not entitled to the protections under the Employment Standards Act, such as notice and severance pay when the contract is terminated. This has motivated some employers to enter into independent contractor agreements despite the reality that the independent contractor is essentially an employee or dependent contractor committing all of their time to the employer. The proposed legislation will attempt to prevent employers from treating someone who is essentially an employee or dependent contractor as an independent contractor. There will be penalties for employers who try to misclassify their employees to avoid their obligations under the Employment Standards Act.

Card-based union certification

Changes will also be made to the Labour Relations Act in connection to union certification. For most industries, a voting-based process is used to cast votes for or against unionization.

Bill 148 proposes that the card-based certification system, as seen in the construction industry, be expanded to other industries including, building services, community services, home case and temporary agencies. The justification is based on the suggestion that card-based certification will decrease the ability of the employer to influence the voting employee population. There are also further proposed changes that would require employee lists and contact information to be provided if the union can show they have the support of at least 20 percent of employees.

Being proactive is the best way to deal with the changes that are coming as a result of Bill 148. While we do not know precisely what the state of the law will be, your business can start to update its current Human Resource Policies and employment contract templates to reflect the new requirements.

This area of law is evolving, literally as I write this article. Therefore, it is crucial that you seek legal assistance in order to minimize the risk of liability in the future.

David Alli of Brampton, Ont.-based Lawrences represents and advises employers in all areas of employment law.

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