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What will the provincial election mean for labour and employment law?

labour and employment lawOntarians head to the polls on June 7th, and the results could mean big changes for labour and employment law.

While the Liberals are promising to maintain the status quo, the Progressive Conservatives are taking aim at future increases to the minimum wage and the NDP hopes to make sweeping changes to both the labour and employment law regimes.

The Liberal Party of Ontario

In 2017, the Liberals tabled the Fair Workplaces, Better Jobs Act (“Bill 148”) which introduced significant amendments to the Labour Relations Act, the Employment Standards Act and the Occupational Health and Safety Act, effective January 1, 2018.

Bill 148 most notably expanded workers’ entitlements under the ESA, increasing employees’ minimum annual vacation days and Personal Emergency Leave days (including providing for pay on the first two PEL days). The Bill also raised the minimum wage to $14.00/hour, with a future increase to $15.00/hour set to come into effect January 1, 2019 and a plan to index the minimum wage to inflation.

Given that the Bill just came into effect on January 1, 2018, Premier Kathleen Wynne has not announced any further plans for labour and employment law.

The Progressive Conservative Party of Ontario

Doug Ford entered the race late in the game, and despite his earlier promises, it seems unlikely that he will release a comprehensive campaign platform. Instead, his various positions continue to be released piecemeal, leaving his intentions for labour and employment law unclear.

Ford has made one promise, however: freezing the minimum wage at its current level of $14. This would require repealing the sections of Bill 148 that are set to raise the minimum wage to $15 on January 1, 2019 and index the minimum wage to inflation.

The Ontario New Democratic Party

Unlike her fellow candidates, Andrea Horwath has made big promises for both labour and employment law.

The Labour Relations Act

The NDP has proposed a number of changes aimed at facilitating access to collective bargaining.

First, Horwath would allow for card-based union certification in a wider range of sectors, outside of the construction sector and the building services sector (to which card based certification was extended by Bill 148). Currently, outside those sectors where card based certification is available, in order for a union to be certified under the current Act, 40 per cent of the individuals in a proposed bargaining unit must sign union cards, and 50 per cent of those who participate in a subsequent vote must support unionization. Horwath proposes to make this process less onerous for workers by allowing workplaces to unionize after 55 per cent of individuals in a proposed bargaining unit sign union cards, eliminating the current requirement for a representation vote.

Second, Horwath hopes to broaden access to first contract arbitration. At present, a recently-certified union can apply for first contract arbitration if, after a certain period of time, the union and the employer have not reached an agreement. In most cases, however, the Ontario Labour Relations Board has the power to deny that application. This means that a recently certified union could be decertified if it does not reach an agreement with the employer. The NDP would remove the Board’s discretion, so that every certified union is able to attain a collective agreement through arbitration.

Third, Horwath has promised to allow for broader-based bargaining. Sometimes called “sectoral bargaining,” this model allows workplaces operated by different employers in the same industry to be certified in a single bargaining unit.

The Employment Standards Act

Horwath has also promised to make three changes to the ESA. First, she will require all employers to offer at least three weeks of paid vacation to all full-time employees. Under the current legislation, employees are only entitled to three weeks of paid vacation after five years of employment.

Second, Horwath plans to extend the $15 minimum wage to students under the age of 18 and to employees who serve liquor in restaurants and bars, who are currently subject to lower minimum wages.

Finally, Horwath plans to ensure that permanent employees are not misclassified as independent contractors, which excludes them from many of the ESA’s protections.

By Lily Hassall, Summer Student, Koskie Minsky LLP

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