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Ontario announces that it will be “making Ontario open for business” by repealing Bill 148

Open for BusinessToday the Government of Ontario announced that it will introduce sweeping “Open for Business” legislation that will remove burdens on businesses while also protecting workers. In other words, the Government of Ontario, as promised, will be “getting rid” of Bill 148.

As many of our readers will recall, Ontario’s employment and labour laws have been significantly modified in the past two and half years, the cumulative effect of which is onerous on business. It is hoped that the introduction of Ontario’s Making Ontario Open for Business Act will help restore more balance and stability.

Many of our clients will be interested in these changes and we at McCarthy Tétrault intend to provide more guidance on what this means in the coming days, including providing a full review of the Making Ontario Open for Business Act once it is introduced in the legislature.

In the meantime, the Ontario Government has announced the following expected changes:

What is changing?

Changes to the Employment Standards Act, 2000

  • Scheduling Rules will not come into effect. Specifically employers will not be required to:
    • discuss an employee’s request to change his/her work schedule or work location;
    • provide three-hours of “on-call” pay;
    • provide three-hours’ pay for a shift cancelled within 48 hours; and
    • provide 96 hours’ notice to schedule an employee to work on a day they were not previously scheduled.
  • Personal Emergency Leave (including 2 paid days) will be replaced with an annual entitlement to:
    • 3 unpaid days off for personal illness;
    • 3 unpaid days off for family responsibilities; and
    • 2 unpaid days off for bereavement leave.

In addition, employers will once again have the right to require a medical note in support of an absence.

  • Eliminating Equal Pay for Equal Work Based on Status. This includes eliminating the equal pay for equal work requirements pertaining to:
    • Employment Status (e.g. part-time, casual, and temporary); and
    • Assignment Employee Status (i.e. temporary help agency status).

The requirement for equal pay for equal work on the basis of sex will remain.

  • Eliminating the Reverse Onus on Employee Misclassification.
  • Decreasing the maximum penalties for employment standards contraventions.
  • Changes to the Labour Relations Act, 1995

Most if not all of the Bill 148 changes to the Labour Relations Act will be repealed, which means:

  • Elimination of Card-Based Certification for home care, building services, and temporary help agencies.
  • Removing the requirement to provide Employee Lists after 20% support.
  • Reinstating discretionary remedies, to the Ontario Labour Relations Board (“OLRB”) rather than simply requiring remedial certification.
  • Removing the regulatory authority to expand Successor Rights to contract tendering for publicly-funded service providers.
  • Removing the OLRB’s power to review and consolidate newly certified bargaining units with existing ones.
  • Reinstating the six-month limitation on the right to reinstatement during a strike or lockout.
  • Returning the conditions for accessing first contract arbitration (rather than mediation-arbitration).
  • Decreasing the maximum fines for contravention

What stays the same?

Although Premier Ford had previously announced that the Government of Ontario would be “getting rid” of Bill 148, a few items are expected to remain the same:

  • Minimum Wage will remain at $14.00 Hour.
    • Scheduled increases will commence in October 2020 and will once again be tied to inflation.
  • Three Hour Rule:
    • Employers will still be required to pay an employee who is required to report to work a minimum three hours of pay, even if the employee works less.
  • Three Weeks’ Paid Vacation After 5 years of Service.
  • Maintaining Domestic or Sexual Violence Leave.
  • Maintaining the Pro-Rated Public Holiday Pay Formula.

How did we get here?

As a reminder, and to put all of this into context, here is a timeline outlining how we arrived at today’s announcement:

  • February 17, 2015 – Changing Workplaces Review Announced and Special Advisors Appointed.
  • June 16, 2015 – Public Consultations begin for the Changing Workplaces Review.
  • July 27, 2016 Interim Report for the Changing Workplaces Review is released.
  • May 23, 2017 – The Government of Ontario releases the Changing Workplaces Review Final Report.
  • May 30, 2017 – Government of Ontario charts its own course by introducing Bill 148.
  • November 22, 2017 – Ontario Government passes Bill 148.
  • May 7, 2018 – Liberal Government reverts back to the previous Public Holiday Pay Calculation.
  • October 2, 2018 – Government of Ontario announces that it will be “getting rid” of Bill 148

We will provide further updates once the Government introduces the Making Ontario Open for Business Act.

By Matthew Demeo and Tim Lawson

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Employer Advisor, McCarthy Tétrault LLP

Employment and labour lawyers at McCarthy Tétrault LLP
McCarthy Tétrault through their Employer Advisor blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more
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