Beyond the final report: Government of Ontario charts its own course following the Changing Workplaces Review

June 5, 2017 Employer Advisor, McCarthy Tétrault LLP Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Recruiting and Hiring, Source Deductions and Reporting, Union Relations, Wages and Compensation

We reported on the Government of Ontario’s release of the Changing Workplaces Review Final Report, which comprehensively reviewed Ontario’s Employment Standards Act, 2000 (the “ESA”) and Labour Relations Act, 1995 (the “LRA”). Today, the Government of Ontario announced its intention to introduce The Fair Workplace, Better Jobs Act, 2017 in response to the 173 recommendations provided by the Final Report.

Notably, the Government of Ontario has proposed several changes that were either not among the recommendations put forward in the Final Report or that substantially diverge from the Final Report’s 173 recommendations, including:

Increasing the general minimum wage from $11.40 to $14.00 per hour on January 1, 2018 and then to $15.00 per hour on January 1, 2019. According to the announcement, distinct minimum wage rates for categories of specified workers (e.g. students, liquor service, hunting and fishing guides) would be maintained, though these wage rates would also be increased for 2018 and 2019.

Providing 10 days of personal emergency leave (PEL) to all employees per year, including two paid PEL days. According to the announcement, the 50 employee threshold for PEL entitlement would be eliminated. Employers would also be prohibited from requesting a sick note from an employee taking PEL.
Prohibiting the misclassification of “employees” as “independent contractors”. Employers who misclassify employees in this manner may be subjected to prosecution, including public disclosure of a conviction and monetary penalties. However, the definition of “employee” under the ESA will not be expanded to include a dependent contractor.
Establishing card-based union certification for the temporary help agency industry, the building services sector and home care and community services industry.
Preventing employers from disciplining or discharging employees without just cause in the period between certification and the conclusion of a first collective agreement, as well as during the period between the date the parties are in a legal strike or lock-out position and the conclusion of a new collective agreement

The Government of Ontario has also opted to include several significant recommendations from the Final Report, including:

Enhancing employment standards enforcement by hiring up to 175 more employment standards officers. Once these officers are hired by 2020-2021, their aim will be to resolve all claims filed within 90 days and to inspect 1 in 10 Ontario workplaces.
Allowing unions to access employee lists and certain contact information, provided that the union can demonstrate that it has achieved support of 20% of the employees involved.
Allowing the Ontario Labour Relations Board (OLRB) to consolidate newly certified bargaining units with other existing bargaining units under a single employer, where those units are represented by the same bargaining agent.

Should the proposed legislation pass, as it is expected to, most of the revisions to the ESA will become effective January 1, 2018. All revisions to the LRA will come into effect six months after the Act comes into force.

The Government of Ontario is expected to introduce the final legislation in the coming months and we will continue to report on its development through the legislature.

By: Tim Lawson, Sean Porter and Matthew Demeo

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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