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Littler LLP: George Vassos, Harrison Brown, Rhonda Levy

Ontario, Canada: Proposed Legislation Would Repeal Certain Amendments Made by Bill 148

On October 23, 2018, the Ontario government announced its intent to repeal amendments made by Bill 148, The Fair Workplaces Better Jobs Act, 2017 (Bill 148). Bill 148, which received Royal Assent on November 27, 2017, made significant changes to Ontario labour and employment law by amending the Employment Standards Act, 2000 (ESA), the Labour Relations Act, 1995 (LRA), and the Occupational Health and Safety Act. Most Bill 148 amendments were in force by April 1, 2018, with the remaining amendments to the ESA to become effective on January 1, 2019. According to the government, the proposed legislation—Bill 47, Making Ontario Open for Business Act—would repeal the amendments “that are causing employers the most concern and unnecessary burden.”

Summarized below is an overview of some of the key changes proposed by Bill 47.  This overview provides highlights only and is not exhaustive.

ESA Amendments

If it is enacted in its current form, Bill 47 would:

Enforce a Temporary Minimum Wage Freeze. The minimum wage increase from $14.00 to $15.00 per hour scheduled for January 1, 2019, would be cancelled.  The minimum wage would remain at $14.00 per hour in 2019 and be subject to an increase tied to the consumer price index on October 1st of every year commencing in 2020. 

Repeal Scheduling Provisions With One Exception. With the exception of the Modified Three-Hour Rule, certain scheduling provisions introduced by Bill 148, which were to take effect on January 1, 2019, would be repealed.  They include:

  • Right to request changes to schedule or work location after at least three months of employment;
  • Minimum of three hours' pay for on-call work for employees who are on-call but not called into work, or who are on-call for less than three hours;
  • Right to refuse requests or demands to work or to be on-call on a day the employee is not scheduled to work or to be on call with less than 96 hours’ notice; and
  • Three hours’ pay upon the cancellation of a scheduled shift or an on-call shift within 48 hours of the shift’s commencement.

Record-keeping requirements relating to the scheduling provisions listed above would also be repealed.

As noted above, the Modified Three-Hour Rule introduced by Bill 148, and scheduled to come into force on January 1, 2019, would not be impacted by Bill 47.  This rule applies to employees who regularly work more than three hours per day.  It addresses situations where employees are called in to work but actually work less than three hours, despite being available to work longer.  In these circumstances, the employee will be entitled to be paid for three hours’ work. This rule will not apply when the employer could not provide work due to circumstances beyond its control, such as fire, lightning, power failure, storms or other causes of that nature.

Repeal Personal Emergency Leave and Replace it with Three Unpaid Leaves.  Bill 47 repeals the current Personal Emergency Leave (“PEL”) entitlement, including the basic entitlement initially introduced in 2001 (10 unpaid days per year to deal with personal matters) and the changes introduced by Bill 148 (the first two PEL days would be paid and medical notes to substantiate such an absence could not be required by the employer).  Bill 47 would replace PEL with the following three unpaid leaves, which would be available to employees who have been employed for two consecutive weeks:  

  • Sick Leave (three days per calendar year for personal illness, injury or medical emergencies);
  • Family Responsibility Leave (three days per calendar year); and
  • Bereavement Leave (two days per calendar year).

With respect to all of these unpaid leaves, employers would be entitled to require the employee to provide evidence reasonable in the circumstances.  This repeals the prohibition against an employer requesting a doctor’s note from an employee seeking sick leave.  Furthermore, if an employee is entitled to the leave under an employment contract on a paid or unpaid basis, when the leave is taken under the contract, the employee would be deemed to have taken it under the ESA.

Repeal the Reverse Onus on Employers to Prove that Employees are Properly Classified. Bill 47 repeals the reverse onus on employers to prove that individuals not classified as employees are, in fact, not employees.  The proposal, however, leaves intact the Bill 148 amendment to the ESA that expressly prohibits the misclassification of employees. 

Repeal Equal Pay for Equal Work Provisions Prohibiting Lower Rates of Pay Based on Employment Status and Assignment Employee Status. “Employment Status” refers to differences in the number of hours regularly worked (i.e., part-time versus full-time) and whether the employee is assigned permanent versus casual status.  “Assignment Employee Status” refers to assignment employees placed by a temporary help agency to the workplace of a client.

Repeal the Public Holiday Pay Formula Set Out in Bill 148 and Permanently Maintain the Pre-Bill 148 Formula that was Temporarily Reinstated on July 1, 2018.

Bill 47 does not impact all provisions of Bill 148 relating to the ESA, including the following:

  • Those eligible for domestic or sexual violence leave remain entitled to that leave, including five days of paid leave; and
  • Employees will be entitled to three weeks of vacation time and vacation pay of 6% of all “wages” after five years or more of employment (no change to the two weeks/4% where employment is less than five years).

LRA Amendments

If it is enacted in its current form, Bill 47 would:

  • Repeal card-based certification for workers in the home care and community services industry, the building services industry, and the temporary help industry and return to a vote-based system.
  • Repeal the ability of unions to apply to the Ontario Labour Relations Board (“OLRB”) for a list of employees when they can demonstrate 20% employee support for union certification.
  • Repeal the remedial certification rules under Bill 148 and revert to the remedial certification options that existed before Bill 148.
  • Repeal government-enacted union successor rights in government-funded industries.
  • Repeal the OLRB’s power to review and consolidate newly certified bargaining units with existing bargaining units and provide the OLRB with a more general power when certain conditions are met.
  • Repeal the just cause protection covering the period beginning on the date when a strike or lockout becomes lawful and ending on the date a new collective agreement is entered into, which was introduced by Bill 148.
  • Empower the OLRB to review the structure of bargaining units where the existing bargaining units are no longer appropriate for collective bargaining.
  • Repeal new provisions for first collective agreements in Bill 148 relating to educational supports, mediation and mediation-arbitration, and return to the first collective agreement process in the LRA prior to Bill 148, which allows for the involvement of the OLRB in first collective agreement arbitration in specific circumstances.

As many changes made to the LRA by Bill 148 came into force on January 1, 2018, Bill 47 contains transition provisions to deal with matters that have been commenced.

It is assumed that efforts will be made to pass Bill 47 by the end of 2018, as the remaining Bill 148 amendments are scheduled to come into force on January 1, 2019.  The timing of the Bill’s passage is not yet certain, however.  In addition, it is not known if Bill 47 will be passed in its current form. 

We will follow Bill 47 as it moves through the stages prescribed by the Legislature and continue to advise you of its progress.

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