Employment & Labour

Employment legislation switch leaves lawyers, HR consultants scrambling

By AdvocateDaily.com Staff

Employment law in Ontario has become more politicized than ever following the passage of recent legislation, Toronto employment lawyer Doug MacLeod tells AdvocateDaily.com.

Bill 47, the Making Ontario Open for Business Act, introduced by Premier Doug Ford’s new provincial government, rolls back a large chunk of the previous Employment Standards Act (ESA) reforms contained in Bill 148, the Fair Workplaces, Better Jobs Act, 2017. That law was passed just a year previously under Ford’s Liberal predecessor, Kathleen Wynne.

“Employment law has become increasingly politicized in this province over the last 30 years, and these two bills are an extension of that trend,” says MacLeod, principal of MacLeod Law Firm.

Prior to the 1980s, MacLeod says a “large mushy middle” in Canadian and Ontarian politics resulted in a consensus-fueled stability in employment law.

Since then, he explains that political parties have become more willing to express their ideology in legislative amendments.

According to MacLeod, Bill 148 was the culmination of a significant leftward lurch under the Wynne administration — working at times in tandem with their federal counterparts.

For example, he says the extension of EI benefits for maternity leave from 12 to 18 months could never have been enacted without provincial and federal co-operation due to the overlapping jurisdictions.

“Bill 148 established some very significant new principles,” MacLeod says, pointing to its introduction of the concept of paid leave for the first time to provincial legislation.

The bill extended the right to personal emergency leave days to all employees, rather than just those at larger companies, and mandated that the first two of the 10 days that were allowed should be paid.

"This in my view, was the thin edge of the wedge, designed to establish the principle which would lay the groundwork for more paid leaves further down the road,” MacLeod says.

Bill 148 also raised the province’s minimum wage and required employers to pay the same wages to part-time, temporary, casual and seasonal workers as full-time employees doing substantially the same work, subject to a number of exemptions.

In addition, under Bill 148:

  • temporary help agency employees were required to receive the same pay as those doing the same job at the agencies' client companies
  • employees had to be paid for three hours of work if their shift was cancelled within 48 hours of its scheduled start time
  • measures were added to ensure that employees were not misclassified as independent contractors

However, Bill 47 undid the majority of those amendments, freezing the minimum wage increase planned for January and replacing the 10 personal emergency leave days with eight unpaid days, with three days allocated for sick leave, three more for family responsibility leave, and two days for bereavement leave.

The new rules regarding scheduling, shift work and equal pay for equal work were also either repealed or will not take effect after the passage of Bill 47.

MacLeod says the whiplash-inducing shifts are frustrating for lawyers and human resources consultants who spend countless hours trying to figure out the implications for clients.

In addition, he says the ESA has effectively returned to its pre-Bill 148 state when the consensus was that an update was long overdue.

“The last major rewrite was in 2000,” MacLeod says. “It’s a really complex piece of legislation that needs to be updated and simplified to make it easier for employers to follow.

“To me, this has been a missed opportunity for the government because there’s not going to much appetite for further reforms for a long time,” he adds.

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