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Employment & Labour

Bill 148, the Fair Workplaces, Better Jobs Act, 2017, passes

By Laura Williams

Bill 148, the Fair Workplaces, Better Jobs Act, 2017 has completed the Ontario legislative process and will receive Royal Assent and become law imminently. As we have written in the Fall 2017 edition of our newsletter, In the Know, Bill 148 will primarily amend the Employment Standards Act, 2000 (the ESA) and the Labour Relations Act, 1995 (the LRA). On Nov. 16, 2017, shortly before passing the Bill, the legislature made a number of significant changes to Bill 148, including adding an amendment to the Occupational Health and Safety Act (the OHSA).

With some of the recent changes bringing forward the date when certain amendments to the ESA and LRA will come into force, it is now crucial for employers to prepare in earnest for the impact Bill 148 will have on their workplaces. In addition to ensuring compliance with the new laws, employers must familiarize themselves with the legislative changes Bill 148 will implement in order to develop sound strategies to manage the cost and operational impact of the amendments to the extent possible.

Below we detail the key changes the Ontario government made to Bill 148 last week before passing it into law in this final form.

Changes to ESA amendments

Scheduling

Three-hour rule

Significantly, the government has changed how the three hours of pay required to be provided to employees pursuant to the three-hour rule will be calculated in certain circumstances. An employee who:

  • regularly works more than three hours a day;
  • is required to present himself or herself for work but works less than three hours despite being available to work longer; and
  • is entitled to a wage premium for some or all of the hours worked,

will receive wages including the applicable premium (such as wage premiums offered pursuant to contract or policy) for the hours worked, in addition to their regular rate for the rest of the three hour period. For example, if an employee is sent home after working two hours of a shift for which the employee is entitled to a wage premium, the employee will be entitled to receive the premium rate for those two hours worked plus regular pay for one additional hour.

The same change will apply to on-call employees who are called into work, are entitled to compensation under the three-hour rule, and work for less than three hours. This will not apply to those employees who are on-call to deliver essential public services, such as volunteer firefighters.

Right to refuse work

As with the on-call pay provisions, the government created an additional exception to the new right for employees to refuse a shift or to be on call if they are not given at least 96 hours’ notice of the shift. This change means that employees will not have the right to refuse a shift that is necessary to ensure the continued delivery of essential public services.

Equal pay for equal work

The government added a new definition of “substantially the same” to the amendments to the ESA’s Equal Pay for Equal Work provisions to specify that the phrase means “substantially the same but not necessarily identical.” This change clarifies that similar but non-identical positions may still trigger the requirement for equal pay under the new provisions. The government has committed to reviewing the Equal Pay for Equal Work provisions before April 1, 2021.

Leaves of absence

As we wrote in the fall 2017 edition of In the Know, Bill 148 will amend some ESA-protected leave entitlements, and add others.

Pregnancy and parental leave

The government has made further changes to Bill 148 to indicate when the enhanced pregnancy and parental leave entitlements will come into effect. These amendments will come into effect on Dec. 3, 2017. This timing aligns with the federal government’s recent changes to the Employment Insurance Act, which will allow parents to receive employment insurance over an 18 month period.

Bill 148 has also been revised to clarify that the new pregnancy leave rules apply only for leaves that begin on or after Jan. 1, 2018. Similarly, the extended parental leave benefit will only be available to parents whose child is born or comes into their custody, care or control on or after Dec. 3, 2017.

Family medical leave

Bill 148’s enhancement of family medical leave has been further increased such that employees will now be entitled to the leave for up to 28 weeks in a 52 week period.

Critical illness leave

Currently, employees who have been employed for at least six consecutive months are entitled to 37 weeks of critically ill child care leave within a 52 week period for an employee who is a parent or legal guardian to provide care for and support a critically ill child under the age of 18, with extensions available in certain circumstances. This entitlement corresponds to the federal Employment Insurance Act special benefits for parents of critically ill children, which can last up to 35 weeks. Recently, the federal government amended those special benefits to establish a new benefit for up to 15 weeks in a 52 week period for those individuals caring for a critically ill or injured adult family member.

Accordingly, the ESA’s critically ill child care leave will now be replaced with a new critical illness leave. Under this new leave, employees who have been employed for at least six consecutive months will be entitled to:

  • Up to 37 weeks in a 52 week period to provide care or support to a critically ill minor child who is a family member of the employee; and
  • Up to 17 weeks in a 52 week period to provide care or support to a critically ill adult who is a family member of the employee.

The scope of “family member” is quite broad, including step-relations, certain in-laws, and a person who considers the employee to be like a family member.

The new leave will come into effect on the later of Dec. 3, 2017, or the date that Bill 148 receives Royal Assent, again coordinating with the recent changes to the leave entitlement under the federal Employment Insurance Act.

Domestic and sexual violence leave

Bill 148 has been revised to stipulate that, for the new domestic and sexual violence leave, which will provide employees with a dual entitlement of 10 days and 15 weeks of leave per year in specified circumstances, employers will be required to pay employees for the first five days of this entitlement, while the remainder will remain unpaid.

New LRA amendments

The government has made several key changes to the Bill 148 amendments to the LRA.

Coming into force

Originally, the Bill 148 amendments to the LRA were scheduled to come into force six months after Bill 148 receives Royal Assent. However, the LRA-related amendments are now scheduled to come into force significantly earlier, on Jan. 1, 2018.

Employee lists

In addition to the new requirement whereby in certain circumstances employers will be required to provide an employee list to a union seeking bargaining rights which includes employees’ names, phone numbers, and personal email addresses, provided that the employer has this information, Bill 148 has been changed further to give the Ontario Labour Relations Board (the OLRB) discretion to order employers to also disclose:

  • Other information relating to the employee, including the employee’s job title and business address; and
  • Any other means of contact that the employee has provided to the employer, other than a home address.

Bill 148 has been further revised to provide that, where a union is provided with the employee list and subsequently files an application for certification, the proposed bargaining unit in the application no longer needs to be the same as the proposed bargaining unit used to obtain the employee list.

Bargaining unit structure review

Bill 148 has also been revised to allow the employer and a trade union or council of trade unions that represents employees of the employer in multiple bargaining units to agree in writing to review the structure of bargaining units, at any time. With the consent of the OLRB, the parties may now agree to consolidate bargaining units, amend the description of a bargaining unit, and make various other corresponding changes to collective agreements.

OHSA amendment

The government has introduced a new provision in Bill 148 to amend the OHSA. Bill 148 will amend the OHSA to prevent an employer from requiring a worker to wear footwear with an elevated heel unless it is required to perform the work safely, with the exception of workers who are employed as performers in the entertainment and advertising industries.

This proposed amendment to the OHSA appears to be in response to the recent negative media coverage of workplaces requiring women to wear high heels at work. The ban on employers requiring women to wear high heels is consistent with a similar ban that was implemented in British Columbia in spring 2017.

This amendment will come into force on the day Bill 148 receives Royal Assent.

What do the most recent changes to Bill 148 mean for employers?

The recent changes will have a significant impact on employers as, consistent with the original set of proposed amendments, virtually all of the new revisions predominantly benefit employees. Shortly after the Ontario government proposed Bill 148 in June 2017, a study by the Canadian Centre for Economic Analysis (CANCEA) regarding the expected economic impact of Bill 148 found that 185,000 jobs would be at risk in next two years and that the Bill 148 amendments to various legislation would have a $23 billion impact on businesses in the next two years. While this impact was expected to be set off by a stimulus of approximately $11 billion, this would still have resulted in a $12 billion economic impact on Ontario businesses. After two sets of government changes to Bill 148 in August and November 2017, virtually all of which benefit employees rather than employers, the economic impact on businesses will likely be even greater than estimated by CANCEA in its earlier study.

Employees need to seriously consider and implement strategies to mitigate the effect Bill 148 will have on their businesses. Many of the additional costs that will result from Bill 148 compliance can be mitigated through the implementation of employment agreement terms and workplace policies to ensure that employers do not unwittingly provide unintended entitlements beyond what the legislation requires.

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