October 23, 2018
Bye-Bye Bill 148: Ontario Reverses Recent Changes to Workplace Laws
Today, the Ford government presented Bill 47, the Making Ontario Open for Business Act, which will reverse many of the changes to Ontario’s labour and employment laws created by the unpopular Bill 148.
Bill 148 was passed by the Wynne Liberals on November 22, 2017. Introduced in the lead-up to a provincial election in which the ruling Liberals were defeated, it represented a dramatic increase in government regulation of the workplace. Bill 148 introduced changes to minimum wage and vacation entitlements, paid sick days, equal pay rules, scheduling rules, first agreement mediation-arbitration, card-based certification, and more. Widely regarded as micromanaging and burdensome, most employers shall not mourn its passing.
Highlights of the proposed changes in the Making Ontario Open for Business Act include:
Employment Standards Act.
- Minimum Wage: Minimum wage to remain at $14.00/hour, at least until October 2020. Further increases in minimum wage to start October 2020, and will be tied to inflation.
- Scheduling: Most of the new scheduling provision in Bill 148 will be repealed, including the right:
- To request changes to schedule or work location after an employee has been employed for at least three months.
- To receive a minimum of three hours’ pay for being on-call, if the employee is available to work but is not called in to work, or works less than three hours.
- To refuse requests or demands to work or to be on-call on a day that an employee is not scheduled to work or to be on-call with less than 96 hours’ notice.
- To receive three hours’ pay if a scheduled shift or an on-call shift is cancelled within 48 hours before the shift was to begin.
- The obligation to keep records relating to these issues.
- “Three Hour Rule”: The “Three Hour Rule” will be modified such that where an employee who regularly works more than three hours per day is required to report to work, but works less than three hours, the employee will be paid for three hours.
- Personal Emergency Leave: The current right to receive 10 PEL days, of which 2 are paid, will be replaced with a package of 8 unpaid annual leave days:
- Three unpaid days for personal illness
- Two unpaid bereavement leave days
- Three unpaid days for “family responsibilities”
- Medical Notes: Employers will again be allowed to request a medical note from a qualified health practitioner to establish an employee’s entitlement to personal emergency leave.
- Vacation: The current vacation entitlement provisions will remain, such that employees will still be entitled to three (3) weeks’ paid vacation upon reaching five (5) years of service.
- Domestic and Sexual Violence Leave: The current paid leave provisions dealing with domestic and sexual violence will be retained. Public Holiday Pay: The averaging public holiday pay formula prescribed by Bill 148 will be repealed, in favour of the pre-Bill 148 prorating public holiday pay formula.
- Misclassification: If there is a dispute over whether an individual is an employee or an independent contractor, the bill eliminates the reverse onus on the employer to prove that an individual is not an employee.
- Equal Pay for Equal Work: Certain aspects of the Equal Pay for Equal Work provision imposed by Bill 148 will be repealed, thereby permitting employers to differentiate pay on the basis of employment status (part-time, casual, and temporary) and assignment employee status (temporary help agency status). The requirement for equal pay on the basis of sex will remain.
- Sheltered Workshops: Delaying the January 1, 2019 repeal of the exclusion from the ESA of individuals who perform work in a simulated job or working environment if the primary purpose is the individual’s rehabilitation. The repeal will instead come into force on proclamation.
- Penalties for Contravention: The government will be returning to the previous administrative penalties for violations of the ESA. This means that the maximum penalties will decrease from $350/$700/$1500 to $250/$500/$1000, respectively.
Labour Relations Act.
- Card-based Certification: Card-based certification on workers in home care, building services, and temporary help agencies will be repealed, giving workers the right to vote through a secret ballot.
- Employee Lists: Rules requiring an employer to hand over their employees’ personal information to a union will be repealed.
- Remedial Certification: The proposed Act will reinstate the pre-Bill 148 test and preconditions for the OLRB to certify a union as remedy for employer misconduct.
- Successor Rights: The regulation-making authority granted by Bill 148 to expand successor rights to contract tendering for publicly-funded services (such as homecare) will be repealed.
- Structure of Bargaining Units: It will repeal the power of the OLRB to review and consolidate newly certified bargaining units with existing bargaining units. Instead, the OLRB will be empowered to review the structure of bargaining units where the existing bargaining units are no longer appropriate for collective bargaining.
- Return-to-work Rights: The changes will effect a return to the six month limitation on an employee’s right to reinstatement following the start of a strike or lock-out.
- First Collective Agreement Mediation and Mediation-Arbitration: The Bill 148 first collective agreement mediation and mediation-arbitration provisions and provisions for educational support will be repealed and replaced with the pre-Bill 148 conditions for access to first agreement arbitration, where it appears to the OLRB that collective bargaining has been unsuccessful for specified reasons.
- Fines: Previous maximum fines for offences under the LRA will be reinstated, resulting in a decrease in fines from $5,000 to $2,000 for individuals and from $100,000 to $25,000 for organizations.
- Streamlining and Improving Processes: The proposed changes will expand and recognize alternative means of communications under the Act (e.g e-mail) for various types of documents and will allow the OLRB to make rules to expedite certain proceedings without the requirement of an order of the Lieutenant Governor in Council.
Changes to Ontario’s Apprenticeship System.
- Setting all journeyperson to apprentice ratios at one-to-one: Simplifying how employers can hire and oversee apprentices, reduce costs and provide more flexibility for employers and better aligning Ontario with other provinces and territories in Canada.
- Implementing a moratorium on trade classifications and reclassifications, mitigating the risks of increasing regulatory burden and costs for businesses.
- Winding down the Ontario College of Trades: The government intends to wind-down the Ontario College of Trades through an orderly transition that ensures continuity of services to employers, workers and apprentices, while developing a replacement model for the regulation of the skilled trades and apprenticeship system in Ontario by early 2019.
The proposed Bill is not yet law. However, it is expected that these changes will likely proceed quickly through the legislature. Stay tuned for further updates.
If you have any questions regarding the impact of any upcoming changes to Ontario’s workplace laws please do not hesitate to contact a Mathews Dinsdale lawyer.