The Road Ahead: Are You Prepared for Bill 148?

Bill 148, the Fair Workplaces, Betters Jobs Act, 2017 is now in force, having received Royal Assent on November 27, 2017.

With it comes substantial changes to the Employment Standards Act, 2000 (ESA) and the Labour Relations Act, 1995 (LRA), as well as changes to the Occupational Health and Safety Act (OHSA). In this FTR Now, we have consolidated and summarized the information provided to clients previously in a series of updates that tracked the development of Bill 148 in detail from First Reading last June, through two rounds of Committee consideration and amendments, and through to its passage. Readers are reminded to consult the final text of the revised statutes for full details of the amendments.

Employment Standards Act, 2000 (ESA)

In Force November 27, 2017

Employee Classification

Bill 148 amended the ESA to expressly prohibit the misclassification of employees. This new provision is primarily aimed at the misclassification of employees as independent contractors. In addition, employers will have the onus to prove that an individual is an independent contractor and not an employee.

In Force December 3, 2017

Parental Leave

Bill 148 increases parental leave entitlement by a total of 26 weeks:

from 35 weeks to 61 weeks for employees who took a pregnancy leave, and
from 37 weeks to 63 weeks for employees who did not.

Related amendments will adjust the timing of when parental leaves must begin and end to reflect the longer period of leave. These changes will bring the ESA into line with changes to the Employment Insurance Act. The extended parental leave is only available where the date of the birth or the date that the child first comes into the custody, care and control of the parent is on or after December 3, 2017.

Critical Illness Leave

A new Critical Illness Leave replaces the “Critically Ill Child Care Leave.” This new leave encompasses two basic entitlements:

a leave of up to 37 weeks in a 52-week period for an employee to provide care or support to a critically ill minor child (i.e. who is under 18 years of age) who is a family member of the employee, and
a leave of up to 17 weeks in a 52-week period for an employee to provide care or support to a critically ill adult who is a family member of the employee.

The range of “family members” who can take the leave is broad. The provision also stipulates the conditions required to qualify for the leave. Related record-keeping obligations are also in effect December 3, 2017.

In force January 1, 2018

Crown

The Crown will be bound by the provisions of the ESA.

Minimum Wage

The general minimum wage will increase to $14.00 an hour on January 1, 2018. Bill 148 did not eliminate any of the special minimum wage rates, and they will increase by the same percentage applied to the general minimum wage.

Public Holiday Pay

There will be a new formula for the calculation of “public holiday pay”, which divides the wages earned in the pay period immediately preceding the pay period of the public holiday by the number of days actually worked to earn those wages. The most significant impact will be on part-time and casual employees who may see a substantial increase in their public holiday pay entitlement.

The ESA is also being amended in relation to substitute holidays (i.e. where an employee is provided a substitute holiday either because the employee worked on a public holiday or because the holiday fell on the employee’s day off). Whenever an employee is provided a substitute holiday, the employer must provide the employee with a written statement which sets out the public holiday on which the employee will work (or which is being otherwise substituted), the date that is the substitute holiday, and the date on which the statement was provided to the employee.

Vacation with Pay

Employees will now be entitled to 3 weeks of paid vacation where the employee has been employed for 5 years or more. Corresponding changes have been made to the calculation of stub periods (engaged where employers establish an alternate vacation year) and to the rules governing the timing of vacations.

Vacation pay will increase to 6% of wages where the employee has a period of employment of more than 5 years.

Leaves of Absence

(a) Pregnancy Leave

Bill 148 extends pregnancy leave which is available for employees who suffer a still-birth or miscarriage from 6 weeks to 12 weeks after pregnancy loss occurs. These new rules will apply only where the pregnancy leave begins on January 1, 2018 or later. The Bill also creates a new definition of “legally qualified medical practitioner”, which will now include nurses with extended certificates of registration and midwives.

(b) Family Medical Leave

Family medical leave – a leave of absence without pay to provide care or support to certain family members where the individual has a serious medical condition with a significant risk of death within 26 weeks – has been extended from a leave of up to 8 weeks within a 26-week period to a leave of up to 28 weeks within a 52-week period.

The leave must be certified by a qualified health practitioner, and Bill 148 expands the definition of “qualified health practitioner” to include physicians, registered nurses with an extended certificate of registration (or an individual with equivalent qualifications) and prescribed health practitioners.

(c) Crime-Related Child Disappearance Leave and Child Death Leave

The current “Crime-Related Child Death or Disappearance Leave” will be divided into two separate leaves:(1) a Crime-Related Child Disappearance Leave, which will provide up to 104 weeks of leave without pay where a child disappears and it is probable that the disappearance was the result of a crime; and (2) a Child Death Leave, which will provide up to 104 weeks leave without pay for the death of a child for any reason. Employees must have been employed for at least 6 consecutive months to be eligible for either leave.

(d) Domestic or Sexual Violence Leave

This new leave entitles an employee who has been employed for at least 13 consecutive weeks to a leave of absence where that employee or the employee’s child experiences domestic or sexual violence or the threat of sexual or domestic violence and the leave is taken for one of the following purposes:

to seek medical attention for a physical or psychological injury or disability caused by the domestic or sexual violence
to obtain services from a victim services organization
to obtain psychological or other professional counselling
to relocate temporarily or permanently
to seek legal or law enforcement assistance, or
any other prescribed purposes.

The leave is structured as a dual entitlement. In each calendar year, an employee may take up to 10 days of leave and may take up to 15 weeks of leave as well. The first 5 days of the leave must be paid in accordance with a new “domestic or sexual violence leave pay” calculation.

(e) Personal Emergency Leave

Bill 148 makes significant changes to the personal emergency leave provisions of the ESA, including:

eliminating the 50-employee threshold
requiring that the first 2 days of the 10-day entitlement be paid leave
prohibiting employers from requiring an employee to provide a medical note to substantiate any claim for personal emergency leave.

There is a qualifying period for the paid portion of the leave, such that an employee must have been employed for one week before becoming entitled to the 2 paid days (if a personal emergency leave is required in the first week of employment, it will be taken from the 8 unpaid days). Where a paid day of leave occurs when the employee is entitled to overtime pay or a shift premium, the employee will only be entitled to pay at their regular wages and not at the higher rate.

Record-Keeping Requirements

Several new record-keeping requirements have been added to the range of records currently required to be maintained by employers, including in relation to dates and times employees work or were scheduled to work or be on call, cancellations of shifts or on call periods, vacation pay and other matters. The text of the revised ESA should be consulted for specific details.

In addition, the retention period for records of vacation time and vacation pay will increase from 3 years to 5 years.

Temporary Help Agencies – Notice of Termination of Assignment

A temporary help agency must provide an assignment employee with one week’s written notice or pay in lieu where the assignment employee is assigned to perform work for a client, the assignment has an estimated term of 3 months or more at the time it was offered to the employee and the assignment is terminated before the end of its term, subject to certain exceptions. There are corresponding record-keeping obligations.

Removal of Employee Obligations Upon Filing a Complaint

Bill 148 repeals s. 96.1 of the ESA. This means that employees who wish to file a complaint under the ESA will no longer have to take certain specified steps (e.g. inform employer of basis of the complaint) prior to an employment standards officer being assigned to investigate the complaint.

Additional Amendments

There are a range of other changes to the ESA on January 1, 2018, including:

expansion of the related employer provision
allowing for the use of electronic agreements
increased penalties for non-compliance (primarily through increased amounts for notices of contravention and authority to publish more data on persons found to be in contravention of the ESA)
more stringent wage collection measures, and
a new ability for the Director of Employment Standards to provide and revoke “recognition” of employers who meet prescribed criteria presumably for compliance with the ESA.

In Force April 1, 2018

Equal Pay for Equal Work

(a) Difference in Employment Status

Bill 148 will enact a new provision that prohibits employers from paying different rates of pay to their employees because of a difference in employment status, where the employees perform substantially the same kind of work in the same establishment, the performance of the work requires substantially the same skill, effort and responsibility, and the work is performed under similar working conditions.

“Difference in employment status” means either (1) a difference in the number of hours regularly worked by the employees, or (2) a difference in their term of employment including a difference in permanent, temporary, casual or seasonal status. “Substantially the same” is defined to mean substantially the same but does not mean “necessarily identical.” (This latter definition will also apply to the existing provision that prohibits differential pay rates based on “sex”.)

A differential pay rate can be justified on objective grounds, including systems that are based on seniority, merit, where earnings are measured by quantity or quality of production or on any other factor other than sex or employment status.

Employees have a right to request a review of their rate of pay, without reprisal, and employers will be required to respond by either increasing the pay rate or providing a written explanation of the differential. Pay rate differentials cannot be addressed by lowering an employee’s rate of pay.

If a collective agreement is in effect on April 1, 2018, that permits different pay rates based on employment status, the collective agreement will prevail over the ESA provisions until the earlier of (1) the date that the collective agreement expires or (2) January 1, 2020.

(b) Difference in Assignment Employee Status

This new provision will prohibit temporary help agencies from paying an assignment employee who is assigned to perform work for a client at a rate of pay less than the rate paid to an employee of the client where they perform substantially the same kind of work in the same establishment, their performance requires substantially the same skill, effort and responsibility, and their work is performed under similar working conditions.

As with the prior provision, “substantially the same” is defined to mean substantially the same but does not mean “necessarily identical.” This prohibition does not apply where the difference in the rate of pay is made on the basis of any objective factor other than sex, employment status or assignment employee status.

Assignment employees may request a review of their rate of pay from the temporary help agency, without reprisal, and the temporary help agency must either adjust the pay accordingly or provide a written response if they disagree. Pay rate differentials cannot be addressed by lowering an employee’s rate of pay.

If a collective agreement is in effect on April 1, 2018 that permits different pay rates as between employees of a client and an assignment employee, the collective agreement will prevail over the ESA provisions until the earlier of (1) the date that the collective agreement expires or (2) January 1, 2020.

In force January 1, 2019

Minimum Wage

The general minimum wage will increase to $15.00 an hour on January 1, 2019. The special minimum wage rates will be increased by the same percentage applied to the general minimum wage. Once the minimum wage rate reaches $15.00 per hour, the ESA will revert to its existing process of annual increases based on changes in the Consumer Price Index.

Requests for Changes to Schedule or Work Location

An employee who has been employed for at least 3 months may make a written request for a change in their schedule or work location. The employer must discuss the request with the employee and notify the employee of its decision within a reasonable time. If the request is granted, the employer must provide the effective date of the changes and their duration. If the request is denied, the employer must provide reasons for the denial.

Scheduling

(a) Three-Hour Rule

The ESA’s three-hour rule applies where an employee who regularly works more than 3 hours a day is required to present himself or herself for work, but works less than 3 hours, despite being available to work longer. Under the revised rule, the employee is to be paid wages for 3 hours, which is the greater of two amounts:

3 hours of pay at the employee’s regular rate, or
the sum of (1) the amount that the employee earned while working, plus (2) the remaining time calculated at the employee’s regular rate.

The rule will not apply where the employer is unable to provide work due to fire, lightning, power failure, storms or similar causes beyond the employer’s control that result in the stopping of work. The existing 3-hour rule from current ESA regulations remains in force until January 1, 2019.

(b) Minimum On-Call Pay

Bill 148 will create a new entitlement to minimum on-call pay, which applies where an employee is placed on call, but is either not called into work or is required to work but for less than 3 hours (despite being available to work longer). The employee will be entitled to be paid wages for 3 hours, which is the greater of two amounts:

three hours of pay at the employee’s regular rate, or
the sum of (1) the amount that the employee earned while working, plus (2) the remaining time calculated at the employee’s regular rate.

The new entitlement will not apply where a person is put on call for the purposes of ensuring the continued delivery of essential public services, and the person is not required to work. This will apply regardless of who delivers the essential public services.

If a collective agreement is in effect on January 1, 2019 that addresses on-call pay, the collective agreement will prevail over the ESA provisions until the earlier of (1) the date that the collective agreement expires or (2) January 1, 2020.

(c) Right to Refuse Work

An employee will have the right to refuse a request or demand to work or to be on call on a day that the employee was not scheduled if the request or demand is made less than 96 hours before the start of the shift. This right may be exercised without reprisal.

The provision will not apply where the employer’s request or demand is to deal with an emergency, to remedy or reduce a threat to public safety, or to ensure the continued delivery of essential public services, regardless of who delivers those services.

If a collective agreement is in effect on January 1, 2019 that addresses a right to refuse work or be placed on call on scheduled days off, the collective agreement will prevail over the ESA provisions until the earlier of (1) the date that the collective agreement expires or (2) January 1, 2020.

(d) Minimum Cancellation Pay

If an employer cancels an employee’s entire scheduled day of work or scheduled on call period within 48 hours before the time it was to commence, the employee is entitled to regular wages for 3 hours of work.

The provision will not apply where the employment is weather-dependent and the employer cannot provide work for weather-related reasons or there are causes outside the employers control (e.g. fire, lightening, power failures) for the cancellation.

If a collective agreement is in effect on January 1, 2019 that addresses cancellation pay, the collective agreement will prevail over the ESA provisions until the earlier of (1) the date that the collective agreement expires or (2) January 1, 2020.

(e) Limitation on Payment

Bill 148 specifies an employee is only entitled under these new provisions for payment for 3 hours in respect of one scheduled day of work or on call period.

Labour Relations Act, 1995

In Force January 1, 2018

Employee Lists

Where no trade union is certified for a bargaining unit and no collective agreement is in place, the union may apply to the Ontario Labour Relations Board (OLRB) for an order directing an employer to provide it with an employee list where the trade union can establish 20% support in the proposed bargaining unit, subject to certain requirements being met. The new provision will not apply in the construction industry.

The disclosure of certain employee information is mandatory – employee name and a phone number and personal email, where the employee has provided the information to the employer. The OLRB is provided with discretion to order the disclosure of other information. Both the employer and the trade union have obligations regarding the security and the confidentiality of the employee information.

Remedial Certification

Where the OLRB is satisfied that an employer has contravened the LRA, and as a result the union was not able to obtain 40% support, or if the true wishes of the employees were not likely reflected in a representation vote, the OLRB is required to automatically certify the union as the bargaining agent of the employees in the bargaining unit.

Expanded Just Cause Protection

Bill 148 expands the just cause protections in the LRA in two key ways. First, an employer will be prohibited from discharging or disciplining an employee without just cause during the period that begins on the date on which a strike or lockout became lawful and ending on the date a new collective agreement is entered into. Second, employers will not be able to discipline or terminate an employee except for just cause once a trade union has been certified as the bargaining agent. This protection will continue until a new collective agreement is entered into.

Bargaining Unit Structure Review

(a) Consolidation after Certification

Where a bargaining unit is newly certified, the OLRB may review the structure of the unit if the employer or union applies to the OLRB requesting a review at the time the application for certification is made or within 3 months of the certification, a collective agreement has not yet been entered into, and the same union already represents employees of the employer in another bargaining unit. The Board may:

order the consolidation of the bargaining units
amend any certification order
order that the collective agreement that applies to an existing bargaining unit applies to a consolidated bargaining unit
declare that an employer is no longer bound by to an existing collective agreement where consolidation occurs
amend the provision of a collective agreement, including expiry dates and seniority provisions
determine the terms and conditions which apply until the collective agreement becomes applicable to the consolidated unit.

(b) Joint Review by Parties

An employer and a trade union (or council of trade unions) that represents multiple bargaining units may jointly agree in writing to review the structure of the bargaining units. The parties may agree to a number of changes, subject to the consent of the OLRB on the joint application of the parties, including:

consolidating bargaining units
amending descriptions of bargaining units
making a collective agreement to apply to the consolidated units and terminating the existing collective agreements that applied to the pre-consolidated units, and
amending collective agreements, including expiry dates and seniority provisions.

Card-Based Certification – Certain Industries

When seeking to certify a bargaining unit of an employer in the building services industry, the home care and community services industry, or the temporary help industry, a trade union can elect to have its application proceed by way of card-based certification instead of the existing vote-based certification process.

Under the card-based process, the OLRB will dismiss the application if it is satisfied that fewer than 40% of the employees in the bargaining unit are members of the union. If the OLRB is satisfied that at least 40% but not more than 55% of the employees in the bargaining unit are union members, it shall direct a representation vote. If it is satisfied that more than 55% of the employees in the bargaining unit are members of the union, it may certify the union as the bargaining agent, or direct that a representation vote be taken.

First Collective Agreements

(a) Educational Support

The Ministry of Labour will provide educational support in the practice of labour relations and collective bargaining where either party to a first collective agreement makes a request for such support.

(b) First Collective Agreement Mediation

A new process has been introduced whereby parties can apply for the appointment of a first collective agreement mediator and an OLRB-managed mediation process in every case. The party applying for first contract mediation would submit a list of the issues in dispute and its position with respect to those issues. The other party would then have 5 days to respond with its list of issues in dispute and its position with respect to those issues. Within 7 days of receiving the application, the Minister would appoint the first contract mediator, who would then meet with the parties to assist them in bargaining.

Once a mediator has been appointed, certain time limits apply to the timing of lawful strikes or lockouts, to when the OLRB may deal with decertification or displacement applications, and to when a party may seek the OLRB to direct the settlement of a first agreement by mediation-arbitration.

(c) First Collective Agreement Mediation-Arbitration

Where mediation-arbitration has been directed by the OLRB, the parties can agree on a single mediator-arbitrator, or apply to the OLRB to do it. The mediator-arbitrator shall determine the procedure, but the parties must be given full opportunity to present evidence and make submissions. There are time limits to the process, which can be extended by mutual agreement or by the Minister.

No strike or lockout may take place where the collective agreement is being settled by mediation-arbitration, and any such strike or lockout that has already commenced must cease. Once a direction has been given for mediation-arbitration, the rates of wages and all other terms and conditions of employment and all rights, privileges and duties of the employer, the employees and the trade union in effect at the time notice to bargain was given shall continue in effect until the first collective agreement is determined, unless a change was agreed to by the employer and trade union.

A first collective agreement settled under this process would be required to be effective for a period of 2 years from the date on which it is settled.

Successor Rights

The “successor rights” provisions of the LRA have been expanded to include changes in building services providers – buildings services are those provided directly or indirectly by or to a building owner or manager that are related to servicing the premises, including building cleaning services, food services and security services.

A sale of business will be deemed to have occurred if employees perform services at premises that are their principal place of work, if their employer ceases, in whole or in part, to provide the services at those premises, and if substantially similar services are subsequently provided at the premises under the direction of another employer.

Right to Return from Strike or Lockout

The time limit during which an employee on strike can apply to return to work (6 months) has been removed. In addition to the just cause protection during the period when a lawful strike or lockout can occur, discussed above, employees will have a right to challenge any refusal to reinstate them to employment following the strike or lockout. This right may be enforced through the grievance and arbitration procedure.

Remedial Powers of OLRB

The power of the OLRB to make interim orders has been expanded to provide a broad power to make interim decisions and orders in any proceedings.

Logistics of Votes

The OLRB will now be able to conduct votes outside the workplace and to conduct votes electronically or by telephone.

Fines

The maximum fines under the LRA have been increased to $5000 for individuals (from $2000) and to $100,000 for organizations (from $25,000).

Occupational Health and Safety Act

In Force November 27, 2017

Elevated Heels

An employer cannot require a worker to wear footwear with an elevated heel unless it is required to perform the work safely. There is an exception for workers who are employed as performers in the entertainment and advertising industry.

Concluding Comments

We strongly encourage you to work with your Hicks Morley contact to ensure that your organization is ready to comply with all of Bill 148’s many changes. We are now regularly conducting on-site compliance and implementation planning meetings with our clients. We find these to be highly effective given the unique differences that each organization brings to the table regarding their specific terms and conditions of employment.

Should you wish to arrange an on-site compliance planning meeting, please contact any of the authors or your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

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