Human Resources Legislative Update

Supporting Regulations to Bill 148 Now Available

· 5 min read By: Melissa I. Roth, Lydia Bay

Human Resources Legislative Update

Supporting Regulations to Bill 148 Now Available

Date: December 21, 2017

On December 18, 2017, the Ontario government filed the following regulations in support of amendments made by Bill 148, Fair Workplaces, Betters Jobs Act, 2017, to the Employment Standards Act, 2000 (ESA) and the Labour Relations Act, 1995 (LRA):

Regulations Made Under the ESA:

1.   O. Reg. 526/17 amends O. Reg. 285/01 (Exemptions, Special Rules and Establishment of Minimum Wage) as follows:

  • the title of O. Reg. 285/01 is changed to “When Work Deemed to be Performed, Exemptions and Special Rules”
  • certain minimum wage provisions are revoked to reflect the fact those provisions are now contained in the ESA
  • “When Work Deemed to be Performed” by an employee for an employer is now under a standalone heading
  • the following persons are exempted from the new equal pay for equal work provisions (this provision in force April 1, 2018):
    • a person employed as a firefighter as defined in section 1 of the Fire Protection and Prevention Act, 1997
    • an employee who is a student under 18 years of age, if the weekly hours of the student are not in excess of 28 hours or if the student is employed during a school holiday, or
    • a person employed in the recorded visual and audio-visual entertainment production industry
  • the following exemptions regarding the new ESA scheduling provisions are set out (this provision in force January 1, 2019):
    • persons employed in the recorded visual and audio-visual entertainment production industry are exempted from ESA sections 21.5 (right to refuse if less than 96 hours notice) and 21.6 (cancellation within 48 hours)
    • employees covered by the automobile regulation (O. Reg. 502/06) are exempted from ESA sections 21.4 (minimum pay for being on call), 21.5 (right to refuse if less than 96 hours notice) and 21.6 (cancellation within 48 hours)
  • certain changes to the public holiday exemption for construction workers are made
  • construction employees are now included in the special rules regarding personal emergency leave.

Unless otherwise specified above, this regulation is in force January 1, 2018.

2.   O. Reg. 527/17 amends O. Reg. 286/01 (Benefit Plans) as follows:

  • “pooled registered pension plan” is now included in the definition of “pension plan”
  • permitted differentiations under pension plans on the basis of age will now also apply where, if applicable, that differentiation is in accordance with the Pooled Registered Pension Plans Act (Canada) as it applies for the purpose of the Pooled Registered Pension Plans Act, 2015.

This regulation is in force January 1, 2018.

3.   O. Reg. 528/17 amends O. Reg. 289/01 (Enforcement) to increase the amounts of penalties for notices of contravention issued under s. 113(1) of the ESA. This regulation is in force January 1, 2018.

4.   O.Reg. 530/17 amends O. Reg. 502/06 (Terms and Conditions of Employment in Defined Industries – Automobile Manufacturing, Automobile Parts Manufacturing, Automobile Parts Warehousing and Automobile Marshalling), among other things, to provide for two paid personal emergency leave days unless the employee is already entitled to receive two or more specified paid leave days in the calendar year (being vacation days in excess of ESA entitlement, and/or holidays in excess of ESA entitlement, and/or days off for personal illness or personal medical appointments). The amendments further address permitted requirements for evidence reasonable in the circumstances that the employee is entitled to the leave. The exemption from the requirement to provide personal emergency leave for employers regularly employing less than 50 employees is removed. This regulation is in force January 1, 2018.

5.   O. Reg. 531/17 revokes O. Reg. 316/04 (Posting of Information Concerning Rights and Obligations), which prescribed the specific poster to be posted by employers. This regulation came into force on December 18, 2017.

6.   O.Reg. 535/17 (Family Medical Leave and Critical Illness Leave) revokes O. Reg. 476/06 (Family Medical Leave – Prescribed Individuals) to reflect the fact the prescribed individuals for the family medical leave now are now set out in the ESA.

O. Reg. 535/17 also prescribes the conditions that must be met with respect to the following “family member” definition included in both the Family Medical Leave and Critical Illness Leave sections: “a person who considers the employee to be like a family member, provided the prescribed conditions are met.” The prescribed condition is that the employee must, on the request of the employer, provide it with a copy of the document provided to an agency or department of the federal government for the purposes of claiming employment insurance benefits in which it states that the employee is considered to be like a family member.

This regulation is in force January 1, 2018.

Certain housekeeping regulations under the ESA were also filed:

1.   O. Reg. 525/17 amends O. Reg. 125/16 (Tips and Other Gratuities) to reflect the fact the definition of “tips and gratuities” is now included in the definition section (s. 1(1)) of the ESA. This regulation is in force January 1, 2018.

2.   O. Reg. 532/17 amends Reg 291/01 (Terms and Conditions of Employment in Defined Industries – Women’s Coat and Suit Industry and Women’s Dress and Sportswear Industry) to reflect the fact the three-hour rule will be set out in the ESA. This regulation is in force January 1, 2019.

3.   O.Reg. 533/17 makes consequential amendments to O. Reg. 288/01 (Termination and Severance of Employment) to reflect the change in name of O. Reg. 285/01. This regulation is in force January 1, 2018.

Regulation Made under the LRA

O. Reg. 534/17 (Transitional Matters) made under the LRA is enacted to address transitional issues regarding remedies where there is a contravention by an employer, the review of the structure of bargaining units, the discharge or discipline following strikes or lock outs, fines, and the powers of the Ontario Labour Relations Board. This regulation is in force on January 1, 2018.

Regulation under the Employment Protection for Foreign Nationals Act, 2009

Also filed on December 18, 2017 was O. Reg. 529/17, amending O. Reg. 47/10 (Penalties) made under the Employment Protection for Foreign Nationals Act, 2009 to increase the penalties for notices of contravention issued under that Act. This regulation is in force January 1, 2018.

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