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Employment & Labour

Many exemptions for Bill 148's equal pay provisions

A new provision in Ontario’s labour laws that requires part-time, casual and temporary workers to receive the same rate of pay as full-time employees doing substantially the same job won’t have as great an impact as the recent hike in the minimum wage, says Toronto employment lawyer Doug MacLeod.

The provision, contained in Bill 148, the Fair Workplaces, Better Jobs Act, 2017, extends the requirement that men and women receive equal pay for equal work, which already existed in the Employment Standards Act (ESA), to a growing segment of the workforce, says MacLeod, principal of MacLeod Law Firm.

“What the government found was that a much higher percentage of the workforce is doing part-time, casual, seasonal work and they’re getting paid less than full-timers doing largely the same work and that there’s something inherently unfair about that. At the same time, the government applied the principle to temporary help agencies, because there’s been a huge proliferation in the use of these short-term workers,” he tells AdvocateDaily.com.

The new provision took effect on April 1, three months after the province’s minimum wage rose from $11.60 to $14 an hour. The rate is scheduled to increase to $15 an hour on Jan. 1, 2019.

Just like the equal pay/equal work requirement for men and women, there are enough exemptions in the new legislation “that you could drive a truck through,” MacLeod says. “The principle is equal pay for equal work, but there are ways that employers can manage to work around it.”

The provision doesn’t apply when the difference in the pay rate is based on seniority or merit, a system that measures earnings by quantity or quality of production, or any other factor other than sex or employment status, he explains.

A key component in the ESA is whether employees, whatever their status, are performing “substantially” the same kind of work. “If you’re not, then you can’t rely on this section. If you are doing substantially the same work, then the question is: Does an exemption apply?” MacLeod says.

“The law has been on the books for women for a long time. I don’t think it’s really brought women’s wages up too much because of the exemptions and the fact that an employer can control the job duties of a position. They can change a job so that it’s not performing substantially the same work. So I suspect employers are going to manage around this,” he says.

“I don’t think it had that great an effect on women’s wages, and I don’t think in five years we’ll look back and see that it’s really changed part-time, casual wage rates, but we’ll see. The minimum wage will have a greater impact than this. That’s a meaningful increase.”

MacLeod says the law won’t work if those affected don’t know what a full-time worker assigned the same duties is earning.

“That’s usually a very sensitive topic with employers, and sometimes there’s even a term of employment that stipulates you can’t talk about your wage with other people. Some employers might even discipline employees for talking about that kind of thing.

"But in order to make this law work, people have to be able to find out. So now people are allowed to ask whether they’re earning the same as a full-time employee and they can’t be punished for asking,” he says.

“If you terminate or punish an employee for making this inquiry, you could be required to reinstate the employee or compensate the employee for any wage loss.”

Those who aren’t satisfied with the reason they’re given for not being paid the same as a co-worker can lodge a complaint with the Ministry of Labour, and it would be investigated by an employment standards officer, MacLeod says. If the officer found that the worker who filed the complaint is doing substantially the same work as a full-time employee, an order to pay would be issued, he adds.

It’s important to note that the new provision deals only with wages, and does not require employers to extend benefits to part-time, casual or seasonal workers, he says, calling it “significant.”

“Some employers have really good benefit plans that are equal to 15 to 20 per cent of their total compensation. I don’t think there was a lot of discussion about extending benefits to part-timers, but I suppose the government may extend the concept to include benefits in the future."

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