Goodbye to Bill 148?

Note: On November 21, 2018, Bill 47, the Making Ontario Open for Business Act, 2018, received Royal Assent and was officially passed. It passed with no substantial changes to the initial bill that the provincial government proposed. It undoes many of the changes that the Liberal government introduced in Bill 148, returning to previous legislative language. The changes to the below legislation will come into effect on the following dates:

  • Employment Standards Act, 2000 – January 1, 2019
  • Labour Relations Act, 1995 – November 21, 2018

On October 23, 2018, the Ontario government announced the Making Ontario Open for Business Act (otherwise referred to as Bill 47).  Bill 47 represents the first concrete measure the Progressive Conservative Government has taken to repeal many of the amendments introduced in Bill 148, the Fair Jobs, Better Workplaces Act, which the previous Liberal government had passed in late 2017. Below, we have outlined the various proposed changes.

Employment Standards Act, 2000 Amendments

Minimum Wage

The scheduled minimum wage increase will be repealed. The minimum wage will remain at $14 until 2020, after which any increases will be tied to inflation.

Personal Emergency Leave

The current provision of 10 days off for personal emergency leave, including two paid sick days, will be repealed. In its place, workers will be able to take up to eight unpaid days off – three days for personal illness, three for family responsibilities, and two for bereavement.

The provision that prohibits employers from requiring employees to present medical notes for personal illnesses will be repealed. Employers will have the right to require reasonable medical evidence, given the circumstances.

Other Paid Leaves:

The following leaves of absence will largely be maintained:

  • Family medical leave
  • Organ donor leave
  • Family caregiver leave
  • Critical illness leave
  • Child death leave
  • Crime-related child disappearance leave
  • Domestic or sexual violence leave

However, the language that provided an employee’s entitlement to these leaves is in addition to any other leaves of absence, including personal emergency leave, will be repealed.

The extended parental leave provisions will be maintained, in their entirety.

Equal Pay for Equal Work

The current provision that requires employers to pay part-time and casual employees at the same rate as full-time workers doing the same work will be repealed.

The equal pay requirement based on sex will be maintained.

Scheduling

Several scheduling provisions that were meant to come into force on January 1, 2019 will be repealed. These include the following:

  • The right to request changes to schedule or work location after at least three months of employment.
  • Providing a minimum of three hours’ pay for being on-call if the employee is not called in to work, or works less than three hours.
  • The right to refuse work on a day that an employee is not scheduled to work or be on-call with less than 96 hours’ notice.
  • Providing three-hours’ pay in the event of cancellation of a scheduled shift or on-call shift, within 48 hours before the shift was to begin.

Three Hour Rule

The current language around the three-hour rule will be modified, such that employees who regularly work more than three hours a day are entitled to a minimum of three hours’ pay if they are called into work.

Misclassification

Requiring employers to bear the onus of proving that an individual is not an employee, and is an independent contractor for example, will be repealed.

Public Holiday Pay

Employers will continue to abide by the public holiday pay formula that was reinstated effective July 1, 2018 (all regular wages (including vacation pay) earned by the employee in the four work weeks before the week in which the public holiday occurs, divided by 20).

Penalties for Contravention

The maximum administrative penalties for contraventions of the Act will be decreased from $350/$700/$1500 to $250/$500/$1000, respectively.

Labour Relations Act Amendments

Card-Based Certification

Requiring card-based certification for workers in home care, building services, and temporary help agencies will be repealed, in favour of voting through a secret ballot.

Employee Lists

Requiring employers to present employees’ personal information to a union, even if only 20% of the workers showed interest in joining a union, will be repealed.

Remedial Certification

The pre-Bill 148 test and preconditions for the OLRB to certify a union as a remedy for employer misconduct will be reinstated. The OLRB will be required to determine whether a vote or a new vote would be a sufficient remedy, or whether the only sufficient remedy would be to certify the union.

Successor Rights

The expansion of successor rights to contract tendering for publicly-funded services will be repealed.

Structure of Bargaining Units

The power of the OLRB to consolidate newly certified bargaining unites with existing bargaining units will be repealed. The OLRB’s authority will be restricted to reviewing the structure of bargaining units where the existing bargaining units are no longer appropriate.

Return-to-work Rights

The previous six month limitation on an employee’s right to reinstatement following the start of a strike or lock-out will be reinstated.

First Collective Agreement Mediation and Mediation-Arbitration

The current first collective agreement mediation and mediation-arbitration provisions, and provisions for educational support will be repealed. The pre-Bill 148 conditions for access to first agreement arbitration will be reinstated (where it appears to the OLRB that collective bargaining has been unsuccessful for specified reasons).

Fines

The maximum fines for offences under the Act will be reduced from $5,000 to $2,000 for individuals, and from $100,000 to $25,000 for organizations.

PH Tips

Bill 148 is still the law for now – We will continue to monitor any legislative developments regarding the Making Ontario Open for Business Act. Until this new legislation is passed, employers should ensure that they continue to abide by the existing legislation.

Strategize on how to make changes AGAIN  Employers should begin to consider strategies on how best to implement these changes, and how these changes will impact their workplace. If employers have already instituted certain benefits they may wish to revert back to previous policies or terms but doing so may prove a bit tricky.  Employers should be wary that reversion to previous policies could trigger potential constructive dismissal claims and so caution should be exercised.


Patrizia Piccolo and Chetan Muram