Well, no one can say that we don’t live in interesting times in Ontario. In 2017, we saw the announcement of the most significant changes to Employment Laws in decades, with dramatic amendments to the Employment Standards Act, 2000, Labour Relations Act, and other core legislation. Many of those changes have already come into force.
However, not long ago, the Progressive Conservatives won our provincial election handily, obtaining a majority of seats and promising/threatening to bring about significant change. It did not take long.
“We’re getting rid of Bill 148. We’re going to make sure we’re competitive around the world.”
Those were the words of Premier Ford last week. Before we could truly fathom the implications of that bold statement, Economic Development Minister Jim Wilson indicated that the law was still under review, suggesting it might not all be reversed.
We did not have to wait long to get a clearer picture. On October 23, 2018, the Ontario government introduced Bill 47, Making Ontario Open For Business Act, 2018, which repeals many provisions of the previous Liberal government’s Fair Workplaces, Better Jobs Act, 2017 (commonly known as Bill 148).
So what does this mean for employers, employees, and Employment Lawyers/Mediators like me?
Well, not everything that the Liberals did in Bill 148 has been “scrapped”; the government kept these changes:
- Increases to minimum wage already in place;
- Requirement that employers pay employees for three hours of work where an employee who regularly works more than three hours per day is required to report to work but works less than three hours;
- Three weeks of vacation after five years of employment;
- Domestic and sexual violence leave entitlements;
- Minimum of one week of notice or pay in lieu for temporary workers with assignments that were anticipated to last three or more months;
- Changes to pregnancy, parental, critical illness and family medical leave corresponding to the Employment Insurance Act;
- Simplified rules for overtime pay for workers with different rates of pay for different kinds of work; and
- Elimination of the requirement to show an intent to defeat ESA rights when establishing two businesses constitute a single employer that carries on “associated or related activities or businesses”.
Here is what will change, assuming that Bill 47 is passed:
Minimum Wage
Bill 148
- Minimum wage increased to $14 per hour on January 1, 2018 and was to increase to $15 per hour on January 1, 2019.
Bill 47
- Minimum wage will remain at $14 per hour. Annual adjustments tied to inflation restart on October 1, 2020.
Personal Emergency Leave / Sick Days / Bereavement
Bill 148
- Entitlement to ten Personal Emergency Leave days per calendar year, the first two of which must be paid.
- Employers not entitled to require medical documentation to support absences.
Bill 47
- Entitlement to:
- Three unpaid sick days
- Three additional unpaid sick days for illnesses / emergencies relating to family members
- Two unpaid bereavement days
- No prohibition on requirement of medical documentation.
Scheduling
Bill 148
- Substantial protections regarding the scheduling of work, scheduled to come into force in 2019, including:
- right to request changes to scheduling after employee has been employed for at least three months;
- minimum three hours of pay for being on call;
- right to refuse requests to work or be on call with less than 96 hours’ notice;
- three hours of pay where a scheduled shift is canceled less than 48 hours before it was to start; and
- record-keeping requirements associated with these scheduling provisions.
Bill 47
- Repealed.
Misclassification of Workers
Bill 148
- Onus on organization to prove that a “contractor” was not actually an employee, with penalties for misclassification.
Bill 47
- Repealed – onus reverts to worker.
Equal Pay for Equal Work
Bill 148
- Required equal pay for equal work, regardless of employment status (ie. part-time, indefinite). Protection for those employed through temporary help agencies.
Bill 47
- Repealed.
Public Holiday Pay
Bill 148
- Calculation of holiday pay was amended.
Bill 47
- Repealed – back to previous system.
Penalties
Bill 148
- Penalties for violating legislation were dramatically increased.
Bill 47
- Repealed.
Bill 47 is not law yet, though it almost certainly will be. Employers should prepare for the changes and ensure that their policies can be easily amended. Employees should understand that their rights may be changing very soon.
It is worth considering that if employers have already amended their policies to comply with Bill 148, as they should have, it is arguable that reverting to the old standards could constitute a constructive dismissal. I will leave that discussion for another day.
